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Citation: 35 Hofstra L. Rev. 2006-2007Content downloaded/printed fromHeinOnline (http://heinonline.org)Fri Jan 16 20:50:48 2009-- Your use of this HeinOnline PDF indicates your acceptanceof HeinOnline's Terms and Conditions of the licenseagreement available at http://heinonline.org/HOL/License-- The search text of this PDF is generated fromuncorrected OCR text.-- To obtain permission to use this article beyond the scopeof your HeinOnline license, please use:https://www.copyright.com/ccc/basicSearch.do?&operation=go&searchType=0&lastSearch=simple&all=on&titleOrStdNo=0091-4029
 
NOTE
CHECK,RAISE,
OR
FOLD:POKER
AND
THE
UNLAWFULINTERNETGAMBLINGENFORCEMENT
ACT
I.
INTRODUCTION
Gamblingpermeates
throughoutAmerican
society.
Onecannotwatch
televisionwithout
stumbling
upon
a
poker
show,'
listen
to
theradio
withouthearing
the
amount
of
today's
lotto
jackpot,
2
or
go ontheInternet
withoutencountering
an
advertisement
for
a
gambling
website.Whenone
thinks
of
this
country's
history,
the
image
of
thefrontiersaloonwith
its
raucousdrinkingand
debauchery
goes
hand
in
handwithgambling,
mainly
poker.
In
nearlyevery
state
in
the
Union,
to
oneextent
or another,
there
exists
someform
of
legalized
gambling.
3
With
such
an
everpervasive
culture
of
gambling
in
thiscountry,
why
is
Internet
gambling
the
banethat
needs
to be
eradicated
from
modem
society?The
Unlawful
Internet
Gambling
Enforcement
Act
of
20064
("Act"
or
"UIGEA")
is
only
the
mostrecent
legislation
passedbyCongress
in
an
attempt
tocurbthe
ongoing
"problem"that
is
Internetgambling.
5
Simplystated,theAct
preventsthose
transactionsthat
are
deemedrestricted
from
being
settled
throughanyfinancial
institution,
includingbanks
andcreditcards.
6
It
is
merely
the
enforcementmechanismbeingutilized
to
curbonline
gambling.
Such
legislation
begs
thequestion:
Is
Internetgambling
anactual
problem,
and
if
so,
is
the
meansbywhich
the
1.
See,
e.g.,
World
Series
of
Poker
(ESPN);
Celebrity
Poker
Showdown
(Bravo);
World
Poker
Tour
(TravelChannel).
2.
See
NAT'L
GAMBLINGIMPACTSTUDY
COMM'N,
FINAL
REPORT
1-1
(1999),
available
at
http://govinfo.library.unt.edu/ngisc/reports/fullrpt.html[hereinafter
NGISCR].
3.
Id.
4.
UnlawfulInternetGambling
Enforcement
Act
of
2006,Pub.
L.
No.
109-347,
120
Stat.
1952
(to
becodifiedat
31
U.S.C.
§
5361).
5.
Gary Rivlin
&
Matt
Richtel,
D 'Amato
Never
Folds:Former
Senator,
a
Poker
Aficionado,Lobbies
or
OnlineGambling,
N.Y.
TIMES,
Mar.
5,
2007,at
C1.
6.
UnlawfulInternetGambling
Enforcement
Act
of
2006,
Pub.
L.
No.
109-347,
120
Stat.
1952
(to
be
codifiedat
31
U.S.C.
§
5363).
HeinOnline -- 35 Hofstra L. Rev. 1617 2006-20072
 
HOFSTRA
LA
W
REVIEW
Legislature
is
attemptingto
quashthis
predicament
theparamountapproach
by
which
to
handle
thesituation?This
Notearguesthatthe
Act(as
well
asits
predecessorbill,
the
InternetGamblingProhibition
Act
of
1997
("IGPA")
7
)
is
merely
a
protectionist
statute
concerned
primarilywiththeeconomic
well-being
of
the nation.
It
willbe shownthatdespiteclaims
to
thecontrary,
the existence
of
the UIGEA
is
in
actuality
beneficial.
Thefact
that
it
is
cloaked
in anaura
of
morality
rhetoric
is
merely
a
guise
to
bypass
internationalsanctioning
in
lieu
of
the
World
Trade
Organization("WTO").
9
However,
as
necessaryand
beneficial
as
such
legislation
may
be to
the nationalinterest,
in
its
currentform
it
is
gravely
flawed,
for
the
Act
impinges
on
theindividualliberties
of
the
independent
citizen
on
the
basis
of
a
lack
of
uniformitybetweengambling
and
investing
laws.
10
This
is
mainly
due
to
a
historicdisdainfor the
former."
Currently,
the
state
of
affairs
in
this
field
fails
to
homogeneously
treat
laws
governing
investments
withthose
governinggambling,despite
thesimilarities
in
theskills
involved
in
the
underlyingactivities.
Such an
incongruous
legal
approach
is
thereforeflawed
since
it
deniesthe
citizentheright
to
doas
he
wisheswithout
the
omnipotent
eye
of
government.
How
canone
reconcilethe
availability
of
gambling
onevery
mediaoutlet
withtheattempt
to
banish
it
on
the
basisthatgambling
is
somehow
immoral?Thesubsequent
portion
of
thisNotefocuses
on the
development
of
Internetgambling
asa
powerful
entityand
thecontemporaneousexpansion
of
federaland
state
restrictions
of
such
entities.
To
fully
grasp
therolethislegislation
has
played
it
will be
necessary
to
understand
the
political
climate
in
which
the
Act
was
formulated
and
in
turn
its
expeditious
passage
throughCongress.From
there,
Part
III
provides
an
examination
of
the
Act
in
its
current
state
through
thelens
of
economicanalysis.Viewedunder
such
a
microscope
it
becomesapparentthatthe
Act
is
actually
beneficial,
7.
Internet
GamblingProhibition
Act
of
1997,
S.
474,
105th
Cong.
(1997).
8.
See,
e.g.,
Rivlin
&
Richtel,
supra
note
5,
at
CI
("'But
themore thatthegovernment
does
toimpede
poker
players,
the
more angry
andfrustratedthey'regoing
to
become."');
Poker
PlayersAlliance:Fightfor
Poker,
http://www.pokerplayersalliance.org/
(last
visited
Aug.
30,
2007).
9.
See
Susan
P.
Crawford,
Shortness
of
Vision:
Regulatory
Ambition
in
the
Digital
Age,
74
FORDHAM
L. REV.
695,
708 (2005).
10.
See
generally
Christine
Hurt,
Regulating
Public
Morals
and Private
Markets:
Online
Securities
Trading,
Internet
Gambling,
and
the
Speculation
Paradox,
86 B.U.
L.
REV.
371
(2006)
(discussing
the
inconsistent
nature
of
the
currentlegal
system
in
regards
to
gambling
and
investingandthe
basis
of
speculation
as
the
factor
that
binds
the
two).
11.
Anthony
N.
Cabot
&
Louis
V.
Csoka,
The
Games
PeoplePlay:
Is
It
Time
for
a
New
Legal
Approach
to
Prize
Games?,
4
NEV.
L.J.
197, 199
(2003)
("In
many
instances,historicreasons,based
on
politics
ratherthananalytical
reasoning,exist
for
such
distinctions.").
[Vol.
35:1617
HeinOnline -- 35 Hofstra L. Rev. 1618 2006-20072
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