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// Public Gaming International // March/April 2015
“restore” the federal Wire Act
2
to the status quo that existed prior to
the issuance, on December 23, 2011, of the Department of Justice’s
opinion
3
confirming that the Wire Act applies only to sports betting,
thus removing the cloud that had prevented states from authorizing
non-sports internet gaming. This claim is inaccurate, because:
1. the legislative history of the Wire Act shows that it was always in-
tended to be limited to sports betting, as discussed in detail in the
DoJ Opinion;
2. several federal bills introduced in the 1990s that would have broad-
ened the scope of the Wire Act show that members of Congress
believed the Wire Act was limited to sports betting;
4
and
3. in 2002, the U.S. Fifth Circuit Court of Appeals, the only federal
circuit court to decide the issue, held that the Wire Act applied only
to sports betting.
5
Most important, the assertion that the RAWA would restore the
pre-DoJ Opinion status quo is incorrect because the RAWA would
eliminate substantial rights that states enjoyed prior to the issuance
of the DoJ Opinion. While the elimination of states’ rights was
discussed in this magazine in reference to last year’s version of the
RAWA,
6
a review here is worthwhile, given the severity of the RAWA’s
adverse effects.
If the RAWA became law, the Wire Act, as amended, would prohib-
it gambling businesses (including state lotteries) from using any net-
work involving a wire or like connection, including the “internet,”
7
to
transmit in “interstate or foreign commerce”:
1. any bet or wager,
2. information assisting in the placing of any bet or wager,
8
or
3. a communication entitling the recipient to receive money or credit
as a result of any bet or wager, or for information assisting in the
placing of any bet or wager.
However, the RAWA would provide four important exemptions.
It would:
1. preserve the status quo as to internet betting on horse races;
9
2. preserve the status quo as to internet betting on charitable games;
10
By Mark Hichar and Ashley Taylor
Wire Act Fix 2015
While Identical
to 2014, It Could be
a Greater Threat
to State Lotteries
1 “Chaffetz, Gabbard Work to Restore America’s Wire Act,” press release issued
by Rep. Chaffetz on Feb. 4, 2015, at
chaffetz-gabbard-work-restore-america%E2%80%99s-wire-act (last accessed
March 9, 2015).
2 18 U.S.C. §§ 1081, 1084.
3 Memorandum Opinion for the Assistant Attorney General, Criminal Division,
“Whether Proposals by Illinois and New York to Use the Internet and Out-of-State
Transaction Processers to Sell Lottery Tickets to In-State Adults Violate the Wire
Act,” September 20, 2011 (issued December 23, 2011) (the “DoJ Opinion”).
4 “The Original Intent of the Wire Act and Its Implications for State-based Legal-
ization of Internet Gambling,” by Michele Minton, Occasional Paper Series, 29.
Las Vegas: Center for Gaming Research, University Libraries, 2014.
5 In re MasterCard Int’l Inc., 313 F.3d 257 (5th Cir. 2002).
6 “A Federal Law Restricting Internet Gambling Could Lead to Unintended And
Devastating Consequences for State Lotteries,” by Mark Hichar, Public Gaming
International, September, 2014.
7 “Internet” is not defined in the RAWA, nor is it defined in the Wire Act (which
was enacted decades before the internet existed). Thus, courts looking for its
meaning would likely refer to the Unlawful Internet Gaming Enforcement Act (31
U.S.C. § 5361 et seq.). There, “internet” is defined as the “international computer
network of interoperable packet switched data networks.” (31 U.S.C. § 5362(5)).
8 Oddly, the RAWA would leave intact the Wire Act’s existing exception pertain-
ing to the transmission of information assisting in sports betting transmitted
between states in which such sports betting was legal. Because this exception
applies only to information assisting in betting on sports events, Congress’
enactment of the RAWA in this form would suggest that Congress intended
to favor (and create a special exception unique to) sports betting. This is the
opposite of what Congress intended in 1961 when the original Wire Act was
enacted, and indeed, it is very unlikely that Congress intends to uniquely favor
sports betting today. One would expect that this exception will be amended
so as to apply to information assisting in making any bet or wager, before the
RAWA proceeds to a final vote in either the House or Senate.
9 It is generally accepted that internet betting on horse races is lawful under a
2000 amendment to the Interstate Horseracing Act (15 U.S.C. § 3001 et seq.).
10 Thus, to the extent internet betting on charitable games was lawful under state
laws in effect on the date the RAWA became law, it would remain lawful.
On February 4, 2015, Representative Jason Chaffetz (R-UT) intro-
duced in Congress H.R.707, entitled the “Restoration of America’s
Wire Act” (the “RAWA”), and the bill now is with the House Com-
mittee on the Judiciary. The RAWA is identical to the bill Chaffetz
introduced on March 26, 2014 (H.R.4301) and to the companion
bill introduced on that same day by Senator Lindsey Graham (R-SC)
(S.2159). As of the date of this writing, the RAWA has fourteen co-
sponsors (eleven Republicans and three Democrats—Congressman
Brad Ashford (D-NE), Congresswoman Tulsi Gabbard (D-HI) and
Congressman Pedro Pierluisi (D-PR). Thus, it is being touted as “bi-
partisan legislation.”
1
The RAWA’s sponsors and supporters assert that it would merely
