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A Different Take on the New Internet Gambling Law:
I haven't followed the new Internet gambling legislation closely, but I did have a few thoughts in response to David's post below. I'm not sure if the law is a good idea or a bad idea, but I don't have the same reaction to it as David does. Let me respond to David's points in sequence, with David's points in italics and mine following:

  1. First, it will not work. It is already not that difficult to evade the law's restrictions . . . [and] I guarantee you that it will be a whole lot easier a year or two down the road.

  Isn't the question marginal impact, not absolute impact? Laws may still work even if they are easy to circumvent: partial compliance may make the law a success relative to the world without the law. For example, speeding laws "don't work" in the sense that people still speed, but they "do work" in the sense that people drive more slowly becase such laws exist. The question is whether this law will have the same sort of impact.

  2. [The new law] perpetuates a truly insidious form of State regulation that would be laughable if it were not so nasty. There's a very good reason that Jack Abramoff's client list consisted primarily of people in the gambling business — there are prodigious opportunities for monopoly rent-seeking in the current regulatory scheme.

  I agree that the gambling industry seems pretty nasty, and I think legalizing Internet gambling may indeed be preferable to trying to prohibit it. (Those are my instincts, at least.) At the same time, my understanding is that the real prohibitions here are the traditional state law prohibitions: the federal law harnesses state law, and the latest law tries to help enforce those state laws. So I would think the answer, if you want to gamble, is to lobby your state legislature to make it legal to gamble.

  3. [T]o the extent that there really are people for whom gambling is a real addiction that is destroying their lives, this will insure that they go underground (see point 1) and find ways (which will be readily at hand) to gamble in untraceable ways.

  I'm not sure I follow this argument. If you are gambling online one way or the other, what does it mean to gamble online "undergound"? Is there an "above ground" form of Internet gambling? I agree that the law may push people to use less reliable and traceable services, but I gather that's part of the point: some people will be deterred by having to use underground services that may not be reliable.

  4. It is incomprehensible gibberish. . . . When law becomes incomprehensible to those supposedly subject to it, it ceases to be law anymore, at least in my book.

   I agree that the law is complex, but is it more complex than most federal statutes? And while simple laws are good, what is the source of the principle that law must be comprehensible to a layperson before it can be recognized as law? I find the tax code pretty incomprehensible, but I still have to pay taxes.

  5. It discriminates, in a rather nasty way, against the poor — it doesn't stop anyone from going to Las Vegas to do all the gambling they wish, but if they want to do that without the expense of traveling, no go.

  Under that definition, don't most legal prohibitions discriminate against the poor? Consider speeding laws. If you want to drive 150mph, you need a fast car and either access to a private track or a trip to Germany. Does this mean that speeding laws discriminate against the poor?

  6. It is protectionist (and quite probably a violation of our international obligations under the GATT) — the whole purpose is to disadvantage overseas businesses and advantage domestic providers.

  I'm not so sure about the protectionist point, but the GATS question seems very much worth considering. See Christine Hurt's posts at the Conglomerate here.

  7. It is unconstitutional. . . . [I]t would clearly be an abridgement of my constitutional right to travel for Congress to pass a statute prohibiting me from going to the UK and participating in (legal) gambling while I was there. The Act, in practical effect, does the same thing. I know it's not really "travel" when one "goes" to an offshore website. But the rationale behind the constitutional right, it seems to me, is as applicable here as in the "physical travel" realm.

  I disagree. First, the Supreme Court has stressed that international travel is different from interstate travel. As Court stated in Haig v. Agee, 453 U.S. 280, 306-07 (1981):
[T]his court has often pointed out the crucial difference between the freedom to travel internationally and the right of interstate travel. The constitutional right of interstate travel is virtually unqualified. By contrast the "right" of international travel has been considered to be no more than an aspect of the "liberty" protected by the Due Process Clause of the Fifth Amendment. As such this "right," the Court has held, can be regulated within the bounds of due process.
The constitutional difference between interstate and international travel explains why there are lots of U.S laws that prohibit extraterroritorial conduct that is legal in the country where it occurs.

  Second, I can't think of authority for the view that accessing a server is the functional equivalent of traveling to the physical location of the server. A gambling site is a service, not a place. Think of how this might work at a state level. Imagine state A has a broad gambling ban, which includes a ban on gambling from inside the state using servers in other states. Is this a violation of the constitutional right to travel of the citizens of A on the ground that this blocks them from "virtually traveling" to the other state to place their bets online? Presumably the answer is no, and this is the same idea just on a national scale instead of a state scale.

  UPDATE: I see that David has updated his post with a new one while I was writing mine. Just a quick response: If one state allowed Internet gambling, I think it probably would still be illegal for people in other states to connect to that one state and then to the server abroad. The reason is that gambling laws generally regulate conduct in their home states, even conduct from home states that involve communication with other states. Thus, placing a bet using a server in another state is not placing a bet "in" that other state, where it is legal, but rather is placing a bet from the home state to the other state, which probably is still illegal under state law. See, e.g., United States v. Cohen, 260 F.3d 68 (2d Cir. 2001.)
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