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Attorneys General call for DOJ to scrap 2018 Wire Act ‘reinterpretation’


Attorneys General from across the US have urged the US Department of Justice (DOJ) to rescind a formal legal opinion that found state-sanctioned online lotteries and casino could be subject to criminal prosecution under the federal Wire Act.

Some 26 state Attorneys General, who are the top legal officers of their state or territory, signed a letter sent to US Attorney General Merrick Garland urging that DOJ issues a formal memorandum rescinding its 2018 opinion “Reconsidering Whether the Wire Act Applies to Non-Sports Gambling.”

That 2018 DOJ opinion reversed a 2011 position which held that the 1961 Wire Act applied to only sports betting, thereby making online lottery sales and other non-sports-related online gaming safe from federal prosecution.

In addition to requesting formal rescission of the 2018 DOJ Wire Act “reinterpretation,” the letter sent last Friday calls on the DOJ to go on record as officially reverting to its 2011 position that the Wire Act applies to only sports-betting-related activity and that online lotteries and other online gambling options do not conflict with federal criminal law.

The letter asserts that “there remains substantial uncertainty” as to whether states and the industry can move forward with existing online gaming platforms and also invest in new online gaming products without fear of future criminal prosecution.

New Jersey Attorney General Gurbir Grewal said: “New Jersey’s legal gambling industry – and the many state services and programs supported by gaming revenue and tax dollars — would have been devastated in 2020 without online gaming.

“Internet gaming has for years been, and remains, an essential industry here, one the Department of Justice viewed since 2011 as perfectly legal until its baseless backtracking in 2018.”

While the reinterpretation was dismissed earlier this year by the Court of Appeals for the First Circuit following a legal challenge in New Hampshire in 2019, the Attorneys General are concerned that it still carries weight beyond the five states and territories under the remit of that court.

Noting that President Joe Biden has publicly disagreed with the Trump-era DOJ opinion and vowed in 2019 to reverse it if he became president, the letter asks DOJ to now provide “clarity and finality,” because “states and the industry need to understand what their rights are under the law without having to file suit in every federal circuit.”

Grewal added: “It’s time for DOJ to lift the fog of ambiguity surrounding this important national issue, do the right thing and rescind the opinion it issued in 2018.

“We maintained from the start that the Trump-era Wire Act ‘reinterpretation’ was politically-motivated and wrong on the law, and we’re proud to now join with our fellow states in calling for its official elimination.”