The game's the same: Why gambling in cyberspace violates federal law

Yale Law Journal

Volumn 108, Issue 7, 1999, Pages 1569-1609

  Keller, Bruce P ^a  

^a Debevoise and Plimpton   (United States)

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[No Author keywords available]

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EID: 8844285266     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797443     Document Type: Review

References (356)

1. See generally Valley Broad, v. United States, 107 F.3d 1328, 1331-32 (9th Cir. 1997) (acknowledging suppression of gambling's social ills as a legitimate governmental interest), cert, denied, 118 S. Ct. 1050 (1998); Players Int'l v. United States, 988 F. Supp. 497, 502 (D.N.J. 1997) (same). In addition to the links to crime so often depicted in popular culture, see, e.g., NICHOLAS PILEGGI, CASINO: LOVE AND HONOR IN LAS VEGAS 177-80 (1995) (detailing the links between gambling and both organized and unorganized crime), these problems include harms to the individual gambler, such as gambling addiction and its fallout - family abuse, workplace abuse, tax evasion, absenteeism, embezzlement, etc. See infra notes 23, 118-138 and accompanying text.
2. See infra notes 120-128 and accompanying text.
3. See TIMOTHY L. O'BRIEN, BAD BET: THE INSIDE STORY OF THE GLAMOUR, GLITZ, AND DANGER OF AMERICA'S GAMBLING INDUSTRY 4 (1998) (asserting that, judged by the estimated $586.5 billion spent in 1996, legal "gambling is now more popular in America than baseball, the movies, and Disneyland - combined").
4. These include sports gambling and online lotteries. See 1 ANTHONY CABOT, THE INTERNET GAMBLING REPORT: AN EVOLVING CONFLICT BETWEEN TECHNOLOGY, POLICY & LAW 28-31 (1997).
5. At least some gambling sites appear to be covered by commercially available filtering software. That technological fix, however, not only requires that the user install such software, but also offers only a rudimentary, pro forma protection against use by minors and other problem gamblers. Jay Cohen has testified that his casino "is registered with Cybersitter, NetNanny, and Surf Watch to ensure that children are kept out of our site." The Internet Gambling Act of 1997: Hearing on S. 474 Before the Subcomm. on Tech., Terrorism, and Gov't Info, of the Senate Comm. on the Judiciary, 105th Cong., 1st Sess. 42 (1997) (statement of Jay Cohen, President & CEO, World Sports Exch.) [hereinafter Kyl Bill Hearing]. In acknowledging that these "controls require parents to be responsible as well," however, he admits that gambling sites have no way of identifying their customers. Id.
6. At least some gambling sites appear to be covered by commercially available filtering software. That technological fix, however, not only requires that the user install such software, but also offers only a rudimentary, pro forma protection against use by minors and other problem gamblers. Jay Cohen has testified that his casino "is registered with Cybersitter, NetNanny, and Surf Watch to ensure that children are kept out of our site." The Internet Gambling Act of 1997: Hearing on S. 474 Before the Subcomm. on Tech., Terrorism, and Gov't Info, of the Senate Comm. on the Judiciary, 105th Cong., 1st Sess. 42 (1997) (statement of Jay Cohen, President & CEO, World Sports Exch.) [hereinafter Kyl Bill Hearing]. In acknowledging that these "controls require parents to be responsible as well," however, he admits that gambling sites have no way of identifying their customers. Id.
7. See, e.g., Mo. REV. STAT. ANN. § 313.817 (West 1994) (restricting casino gambling to persons aged 21 and older); NEV. REV. STAT. ANN. § 463.350 (Michie 1994) (same).
8. See, e.g., Mo. REV. STAT. ANN. § 313.817 (West 1994) (restricting casino gambling to persons aged 21 and older); NEV. REV. STAT. ANN. § 463.350 (Michie 1994) (same).
9. For example, Louisiana law provides: The legislature has expressed its intent to develop a controlled well-regulated gaming industry. . . . The legislature further recognizes that it has an obligation . . . to protect its citizens, and in particular its youngest citizens, from the pervasive nature of gambling which can occur via the Internet and the use of computers connected to the Internet. . . . Gambling which occurs via the Internet embodies the very activity that the legislature seeks to prevent. LA. REV. STAT. ANN. § 14:90.3 (West Supp. 1998) (emphasis added). But cf. infra note 140 (suggesting that the imprecise language of the Louisiana statute may make it vulnerable to a constitutional challenge).
10. This argument has been made with particular vigor in the intellectual property context. See, e.g., John Perry Barlow, The Economy of Ideas, WIRED, Mar., 1994, at 84, 85 (arguing that traditional copyright law is obsolete in cyberspace). But cf. Panavision Int'l v. Toeppen, 141 F.3d 1316, 1321-22 (9th Cir. 1998) (asserting jurisdiction over a trademark infringement suit despite the defendant's claim that "the injury occurred in cyberspace").
11. Kyl Bill Hearing, supra note 5, at 41 (statement of Jay Cohen, President & CEO, World Sports Exch.); see also O'BRIEN, supra, note 3 at 13 (" 'The Internet is a global communications technology not bound by the laws or control of any one government. Internet casinos are only bound by the laws of their host country. Placing bets cannot be illegal because, despite their origination, bets will technically be placed on the computer at our off-shore land-based casino site that is legally licensed and taxed by the host government.'" (quoting a statement from World Wide Web Casinos's Internet site)).
12. Kyl Bill Hearing, supra note 5, at 41 (statement of Jay Cohen, President & CEO, World Sports Exch.); see also O'BRIEN, supra, note 3 at 13 (" 'The Internet is a global communications technology not bound by the laws or control of any one government. Internet casinos are only bound by the laws of their host country. Placing bets cannot be illegal because, despite their origination, bets will technically be placed on the computer at our off-shore land-based casino site that is legally licensed and taxed by the host government.'" (quoting a statement from World Wide Web Casinos's Internet site)).
13. Greg Y. Sato, Note, Should Congress Regulate Cyberspace?, 20 HASTINGS COMM. & ENT. L.J. 699, 710 (1998); see also David R. Johnson & David Post, Law and Borders - The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367, 1367 (1996) (arguing that cyberspace should be thought of as a distinct place because of its inherent lack of borders and transnational nature); Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743, 1743 (1995) (raising the question, "Is Cyberspace really anything new?"); Lawrence Lessig, The Zones of Cyberspace, 48 STAN. L. REV. 1403, 1403 (1996) (answering the question, at least in part, by noting that many cyberspace activities have consequences in physical space in the same way that real world acts do); Jonathan Zittrain, The Rise and Fall of Sysopdom, 10 HARV. J.L. & TECH. 495, 506-09 (1997) (offering a compelling explanation of why procedural rules and substantive causes of action often do not fit well when applied to the vigorous exchange of views often encountered online); Dan L. Burk, Jurisdiction in a World Without Borders, 1 VA. J.L. & TECH. 3, 6 〈http://scs.student.virginia.edu/ -vjolt/graphics/voll/home_art3.html〉 (1997) ("The geographic transparency of the Internet may well place . . . adjudication of transborder disputes outside of any jurisdictional analysis yet contemplated by territorially-bound law.").
14. Greg Y. Sato, Note, Should Congress Regulate Cyberspace?, 20 HASTINGS COMM. & ENT. L.J. 699, 710 (1998); see also David R. Johnson & David Post, Law and Borders - The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367, 1367 (1996) (arguing that cyberspace should be thought of as a distinct place because of its inherent lack of borders and transnational nature); Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743, 1743 (1995) (raising the question, "Is Cyberspace really anything new?"); Lawrence Lessig, The Zones of Cyberspace, 48 STAN. L. REV. 1403, 1403 (1996) (answering the question, at least in part, by noting that many cyberspace activities have consequences in physical space in the same way that real world acts do); Jonathan Zittrain, The Rise and Fall of Sysopdom, 10 HARV. J.L. & TECH. 495, 506-09 (1997) (offering a compelling explanation of why procedural rules and substantive causes of action often do not fit well when applied to the vigorous exchange of views often encountered online); Dan L. Burk, Jurisdiction in a World Without Borders, 1 VA. J.L. & TECH. 3, 6 〈http://scs.student.virginia.edu/ -vjolt/graphics/voll/home_art3.html〉 (1997) ("The geographic transparency of the Internet may well place . . . adjudication of transborder disputes outside of any jurisdictional analysis yet contemplated by territorially-bound law.").
15. Greg Y. Sato, Note, Should Congress Regulate Cyberspace?, 20 HASTINGS COMM. & ENT. L.J. 699, 710 (1998); see also David R. Johnson & David Post, Law and Borders - The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367, 1367 (1996) (arguing that cyberspace should be thought of as a distinct place because of its inherent lack of borders and transnational nature); Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743, 1743 (1995) (raising the question, "Is Cyberspace really anything new?"); Lawrence Lessig, The Zones of Cyberspace, 48 STAN. L. REV. 1403, 1403 (1996) (answering the question, at least in part, by noting that many cyberspace activities have consequences in physical space in the same way that real world acts do); Jonathan Zittrain, The Rise and Fall of Sysopdom, 10 HARV. J.L. & TECH. 495, 506-09 (1997) (offering a compelling explanation of why procedural rules and substantive causes of action often do not fit well when applied to the vigorous exchange of views often encountered online); Dan L. Burk, Jurisdiction in a World Without Borders, 1 VA. J.L. & TECH. 3, 6 〈http://scs.student.virginia.edu/ -vjolt/graphics/voll/home_art3.html〉 (1997) ("The geographic transparency of the Internet may well place . . . adjudication of transborder disputes outside of any jurisdictional analysis yet contemplated by territorially-bound law.").
16. Greg Y. Sato, Note, Should Congress Regulate Cyberspace?, 20 HASTINGS COMM. & ENT. L.J. 699, 710 (1998); see also David R. Johnson & David Post, Law and Borders - The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367, 1367 (1996) (arguing that cyberspace should be thought of as a distinct place because of its inherent lack of borders and transnational nature); Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743, 1743 (1995) (raising the question, "Is Cyberspace really anything new?"); Lawrence Lessig, The Zones of Cyberspace, 48 STAN. L. REV. 1403, 1403 (1996) (answering the question, at least in part, by noting that many cyberspace activities have consequences in physical space in the same way that real world acts do); Jonathan Zittrain, The Rise and Fall of Sysopdom, 10 HARV. J.L. & TECH. 495, 506-09 (1997) (offering a compelling explanation of why procedural rules and substantive causes of action often do not fit well when applied to the vigorous exchange of views often encountered online); Dan L. Burk, Jurisdiction in a World Without Borders, 1 VA. J.L. & TECH. 3, 6 〈http://scs.student.virginia.edu/ -vjolt/graphics/voll/home_art3.html〉 (1997) ("The geographic transparency of the Internet may well place . . . adjudication of transborder disputes outside of any jurisdictional analysis yet contemplated by territorially-bound law.").
17. Greg Y. Sato, Note, Should Congress Regulate Cyberspace?, 20 HASTINGS COMM. & ENT. L.J. 699, 710 (1998); see also David R. Johnson & David Post, Law and Borders - The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367, 1367 (1996) (arguing that cyberspace should be thought of as a distinct place because of its inherent lack of borders and transnational nature); Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743, 1743 (1995) (raising the question, "Is Cyberspace really anything new?"); Lawrence Lessig, The Zones of Cyberspace, 48 STAN. L. REV. 1403, 1403 (1996) (answering the question, at least in part, by noting that many cyberspace activities have consequences in physical space in the same way that real world acts do); Jonathan Zittrain, The Rise and Fall of Sysopdom, 10 HARV. J.L. & TECH. 495, 506-09 (1997) (offering a compelling explanation of why procedural rules and substantive causes of action often do not fit well when applied to the vigorous exchange of views often encountered online); Dan L. Burk, Jurisdiction in a World Without Borders, 1 VA. J.L. & TECH. 3, 6 〈http://scs.student.virginia.edu/ -vjolt/graphics/voll/home_art3.html〉 (1997) ("The geographic transparency of the Internet may well place . . . adjudication of transborder disputes outside of any jurisdictional analysis yet contemplated by territorially-bound law.").
18. Greg Y. Sato, Note, Should Congress Regulate Cyberspace?, 20 HASTINGS COMM. & ENT. L.J. 699, 710 (1998); see also David R. Johnson & David Post, Law and Borders - The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367, 1367 (1996) (arguing that cyberspace should be thought of as a distinct place because of its inherent lack of borders and transnational nature); Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743, 1743 (1995) (raising the question, "Is Cyberspace really anything new?"); Lawrence Lessig, The Zones of Cyberspace, 48 STAN. L. REV. 1403, 1403 (1996) (answering the question, at least in part, by noting that many cyberspace activities have consequences in physical space in the same way that real world acts do); Jonathan Zittrain, The Rise and Fall of Sysopdom, 10 HARV. J.L. & TECH. 495, 506-09 (1997) (offering a compelling explanation of why procedural rules and substantive causes of action often do not fit well when applied to the vigorous exchange of views often encountered online); Dan L. Burk, Jurisdiction in a World Without Borders, 1 VA. J.L. & TECH. 3, 6 〈http://scs.student.virginia.edu/ -vjolt/graphics/voll/home_art3.html〉 (1997) ("The geographic transparency of the Internet may well place . . . adjudication of transborder disputes outside of any jurisdictional analysis yet contemplated by territorially-bound law.").
19. See, e.g., Clay Calvert, Regulating Cyberspace: Metaphor, Rhetoric, Reality, and the Framing of Legal Options, 20 HASTINGS COMM. & ENT. L.J. 541, 542, 544 (1998) (pointing out that the phrase "information superhighway," which Vice President Gore claims to have coined, is an overused metaphor that is not particularly apt).
20. See, e.g., Reno v. ACLU, 117 S. Ct. 2329, 2344 (1997) ("Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer."); American Libraries Ass'n v. Pataki, 969 F. Supp. 160, 161 (S.D.N.Y. 1997) (raising questions of whether "the Internet is more like a television? a radio? a newspaper? a 900-line? a village green?").
21. See, e.g., Reno v. ACLU, 117 S. Ct. 2329, 2344 (1997) ("Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer."); American Libraries Ass'n v. Pataki, 969 F. Supp. 160, 161 (S.D.N.Y. 1997) (raising questions of whether "the Internet is more like a television? a radio? a newspaper? a 900-line? a village green?").
22. Calvert, supra note 11, at 565.
23. See Playboy Enters, v. Chuckleberry Publ'g, 939 F. Supp. 1032, 1039 (S.D.N.Y. 1996) (expressly rejecting the contention that permitting U.S. residents to access the adult Web site "Playmen," based in Italy, was the equivalent of flying to Italy to purchase a copy of Playmen magazine).
24. WILLIAM GIBSON, NEUROMANCER 51 (1985).
25. See J.M. BARRIE, PETER PAN (1928); see also Steven R. Salbu, Who Should Govern the Internet?: Monitoring and Supporting a New Frontier, 11 HARV. J.L. & TECH. 429, 455 (1998) (criticizing the "so-called cyber-libertarian ideal, which takes the term 'cyberspace' too literally"); Stephan Wilske & Teresa Schiller, International Jurisdiction in Cyberspace: Which States May Regulate the Internet?, 50 FED. COMM. L.J. 117, 124 (1997) (arguing that "it is hard to maintain that the Net is some kind of free city in the sky").
26. See J.M. BARRIE, PETER PAN (1928); see also Steven R. Salbu, Who Should Govern the Internet?: Monitoring and Supporting a New Frontier, 11 HARV. J.L. & TECH. 429, 455 (1998) (criticizing the "so-called cyber-libertarian ideal, which takes the term 'cyberspace' too literally"); Stephan Wilske & Teresa Schiller, International Jurisdiction in Cyberspace: Which States May Regulate the Internet?, 50 FED. COMM. L.J. 117, 124 (1997) (arguing that "it is hard to maintain that the Net is some kind of free city in the sky").
27. See J.M. BARRIE, PETER PAN (1928); see also Steven R. Salbu, Who Should Govern the Internet?: Monitoring and Supporting a New Frontier, 11 HARV. J.L. & TECH. 429, 455 (1998) (criticizing the "so-called cyber-libertarian ideal, which takes the term 'cyberspace' too literally"); Stephan Wilske & Teresa Schiller, International Jurisdiction in Cyberspace: Which States May Regulate the Internet?, 50 FED. COMM. L.J. 117, 124 (1997) (arguing that "it is hard to maintain that the Net is some kind of free city in the sky").
28. I. Trotter Hardy, The Proper Legal Regime for "Cyberspace," 55 U. PITT. L. REV. 993, 1000 (1994). In this context, references to the telephone or fax are not useful analogies because the Internet has directly replaced those methods of communication. One of the problems with other Internet analogies is that they do not give sufficient recognition to the Internet's growing role as a substitute for telephony and other means of electronic communication. See, e.g., Internet Telephony: Growing up, ECONOMIST, May 2, 1998, at 56 (estimating that by 2003, "25% of international call minutes worldwide will be made over the Internet"); see also Reno v. ACLU, 117 S. Ct. 2329, 2334 (1997) ("The Internet is a 'unique and wholly new medium of worldwide human communication."' (quoting ACLU v. Reno, 929 F. Supp. 824, 844 (E.D. Pa. 1996))).
29. I. Trotter Hardy, The Proper Legal Regime for "Cyberspace," 55 U. PITT. L. REV. 993, 1000 (1994). In this context, references to the telephone or fax are not useful analogies because the Internet has directly replaced those methods of communication. One of the problems with other Internet analogies is that they do not give sufficient recognition to the Internet's growing role as a substitute for telephony and other means of electronic communication. See, e.g., Internet Telephony: Growing up, ECONOMIST, May 2, 1998, at 56 (estimating that by 2003, "25% of international call minutes worldwide will be made over the Internet"); see also Reno v. ACLU, 117 S. Ct. 2329, 2334 (1997) ("The Internet is a 'unique and wholly new medium of worldwide human communication."' (quoting ACLU v. Reno, 929 F. Supp. 824, 844 (E.D. Pa. 1996))).
30. I. Trotter Hardy, The Proper Legal Regime for "Cyberspace," 55 U. PITT. L. REV. 993, 1000 (1994). In this context, references to the telephone or fax are not useful analogies because the Internet has directly replaced those methods of communication. One of the problems with other Internet analogies is that they do not give sufficient recognition to the Internet's growing role as a substitute for telephony and other means of electronic communication. See, e.g., Internet Telephony: Growing up, ECONOMIST, May 2, 1998, at 56 (estimating that by 2003, "25% of international call minutes worldwide will be made over the Internet"); see also Reno v. ACLU, 117 S. Ct. 2329, 2334 (1997) ("The Internet is a 'unique and wholly new medium of worldwide human communication."' (quoting ACLU v. Reno, 929 F. Supp. 824, 844 (E.D. Pa. 1996))).
31. Commentators on the subject have tended to emphasize the international issues raised by Internet gambling. See, e.g., Harley J. Goldstein, On-Line Gambling: Down to the Wire?, 8 MARQ. SPORTS L.J. 1, 51 (1997) (contending that because cyberspace should be treated as its own legal regime, to properly regulate Internet gambling without creating an international conflict of laws, "a regulatory framework must be formed on the international level"); John Edmund Hogan, Comment, World Wide Wager: The Feasibility of Internet Gambling Regulation, 8 SETON HALL CONST. L.J. 815, 827 (1998) ("Internet gambling is far less compatible with conventional legal methodology due to the lack of territorial containment and . . . effective enforcement . . . ."). Others have expressed concerns that the practical enforcement problems spawned by Internet gambling create a reason not to prohibit Internet gambling, but to legalize and regulate it. See Kyl Bill Hearing, supra note 5, at 47 (statement of Sue Schneider, Chairman, Interactive Gaming Council) ("Internet gambling is inevitable. . . . [T]o prohibit this form of home entertainment is simply not realistic."); Nicholas Robbins, Baby Needs a New Pair of Cybershoes: The Legality of Casino Gambling on the Internet, 2 B.U. J. SCI. & TECH. L. 7, 59 (1996) (concluding that if technology outpaces law enforcement, "America may have no choice" but to live with state-sanctioned online gambling); Seth Gorman & Antony Loo, Comment, Blackjack or Bust: Can U.S. Law Stop Internet Gambling?, 16 LOY. L.A. ENT. L.J. 667, 708-09 (1996) (suggesting that "[e]ncryption, digital communications, electronic cash, and tracing difficulties make enforcement of the current statutes against [Internet] casinos virtually impossible" and that applying "antiquated notions of personal jurisdiction to the borderless Internet" may be difficult); Scott M. Montpas, Comment, Gambling On-Line: For a Hundred Dollars, I Bet You Government Regulation Will Not Stop the Newest Form of Gambling, 22 U. DAYTON L. REV. 163, 184-85 (1996) (asserting that "the nature of the Internet renders isolated United States' laws unenforceable to a large extent" and that legislators should collaborate with foreign governments to establish a uniform policy that facilitates self-regulation).
32. Commentators on the subject have tended to emphasize the international issues raised by Internet gambling. See, e.g., Harley J. Goldstein, On-Line Gambling: Down to the Wire?, 8 MARQ. SPORTS L.J. 1, 51 (1997) (contending that because cyberspace should be treated as its own legal regime, to properly regulate Internet gambling without creating an international conflict of laws, "a regulatory framework must be formed on the international level"); John Edmund Hogan, Comment, World Wide Wager: The Feasibility of Internet Gambling Regulation, 8 SETON HALL CONST. L.J. 815, 827 (1998) ("Internet gambling is far less compatible with conventional legal methodology due to the lack of territorial containment and . . . effective enforcement . . . ."). Others have expressed concerns that the practical enforcement problems spawned by Internet gambling create a reason not to prohibit Internet gambling, but to legalize and regulate it. See Kyl Bill Hearing, supra note 5, at 47 (statement of Sue Schneider, Chairman, Interactive Gaming Council) ("Internet gambling is inevitable. . . . [T]o prohibit this form of home entertainment is simply not realistic."); Nicholas Robbins, Baby Needs a New Pair of Cybershoes: The Legality of Casino Gambling on the Internet, 2 B.U. J. SCI. & TECH. L. 7, 59 (1996) (concluding that if technology outpaces law enforcement, "America may have no choice" but to live with state-sanctioned online gambling); Seth Gorman & Antony Loo, Comment, Blackjack or Bust: Can U.S. Law Stop Internet Gambling?, 16 LOY. L.A. ENT. L.J. 667, 708-09 (1996) (suggesting that "[e]ncryption, digital communications, electronic cash, and tracing difficulties make enforcement of the current statutes against [Internet] casinos virtually impossible" and that applying "antiquated notions of personal jurisdiction to the borderless Internet" may be difficult); Scott M. Montpas, Comment, Gambling On-Line: For a Hundred Dollars, I Bet You Government Regulation Will Not Stop the Newest Form of Gambling, 22 U. DAYTON L. REV. 163, 184-85 (1996) (asserting that "the nature of the Internet renders isolated United States' laws unenforceable to a large extent" and that legislators should collaborate with foreign governments to establish a uniform policy that facilitates self-regulation).
33. Commentators on the subject have tended to emphasize the international issues raised by Internet gambling. See, e.g., Harley J. Goldstein, On-Line Gambling: Down to the Wire?, 8 MARQ. SPORTS L.J. 1, 51 (1997) (contending that because cyberspace should be treated as its own legal regime, to properly regulate Internet gambling without creating an international conflict of laws, "a regulatory framework must be formed on the international level"); John Edmund Hogan, Comment, World Wide Wager: The Feasibility of Internet Gambling Regulation, 8 SETON HALL CONST. L.J. 815, 827 (1998) ("Internet gambling is far less compatible with conventional legal methodology due to the lack of territorial containment and . . . effective enforcement . . . ."). Others have expressed concerns that the practical enforcement problems spawned by Internet gambling create a reason not to prohibit Internet gambling, but to legalize and regulate it. See Kyl Bill Hearing, supra note 5, at 47 (statement of Sue Schneider, Chairman, Interactive Gaming Council) ("Internet gambling is inevitable. . . . [T]o prohibit this form of home entertainment is simply not realistic."); Nicholas Robbins, Baby Needs a New Pair of Cybershoes: The Legality of Casino Gambling on the Internet, 2 B.U. J. SCI. & TECH. L. 7, 59 (1996) (concluding that if technology outpaces law enforcement, "America may have no choice" but to live with state-sanctioned online gambling); Seth Gorman & Antony Loo, Comment, Blackjack or Bust: Can U.S. Law Stop Internet Gambling?, 16 LOY. L.A. ENT. L.J. 667, 708-09 (1996) (suggesting that "[e]ncryption, digital communications, electronic cash, and tracing difficulties make enforcement of the current statutes against [Internet] casinos virtually impossible" and that applying "antiquated notions of personal jurisdiction to the borderless Internet" may be difficult); Scott M. Montpas, Comment, Gambling On-Line: For a Hundred Dollars, I Bet You Government Regulation Will Not Stop the Newest Form of Gambling, 22 U. DAYTON L. REV. 163, 184-85 (1996) (asserting that "the nature of the Internet renders isolated United States' laws unenforceable to a large extent" and that legislators should collaborate with foreign governments to establish a uniform policy that facilitates self-regulation).
34. Commentators on the subject have tended to emphasize the international issues raised by Internet gambling. See, e.g., Harley J. Goldstein, On-Line Gambling: Down to the Wire?, 8 MARQ. SPORTS L.J. 1, 51 (1997) (contending that because cyberspace should be treated as its own legal regime, to properly regulate Internet gambling without creating an international conflict of laws, "a regulatory framework must be formed on the international level"); John Edmund Hogan, Comment, World Wide Wager: The Feasibility of Internet Gambling Regulation, 8 SETON HALL CONST. L.J. 815, 827 (1998) ("Internet gambling is far less compatible with conventional legal methodology due to the lack of territorial containment and . . . effective enforcement . . . ."). Others have expressed concerns that the practical enforcement problems spawned by Internet gambling create a reason not to prohibit Internet gambling, but to legalize and regulate it. See Kyl Bill Hearing, supra note 5, at 47 (statement of Sue Schneider, Chairman, Interactive Gaming Council) ("Internet gambling is inevitable. . . . [T]o prohibit this form of home entertainment is simply not realistic."); Nicholas Robbins, Baby Needs a New Pair of Cybershoes: The Legality of Casino Gambling on the Internet, 2 B.U. J. SCI. & TECH. L. 7, 59 (1996) (concluding that if technology outpaces law enforcement, "America may have no choice" but to live with state-sanctioned online gambling); Seth Gorman & Antony Loo, Comment, Blackjack or Bust: Can U.S. Law Stop Internet Gambling?, 16 LOY. L.A. ENT. L.J. 667, 708-09 (1996) (suggesting that "[e]ncryption, digital communications, electronic cash, and tracing difficulties make enforcement of the current statutes against [Internet] casinos virtually impossible" and that applying "antiquated notions of personal jurisdiction to the borderless Internet" may be difficult); Scott M. Montpas, Comment, Gambling On-Line: For a Hundred Dollars, I Bet You Government Regulation Will Not Stop the Newest Form of Gambling, 22 U. DAYTON L. REV. 163, 184-85 (1996) (asserting that "the nature of the Internet renders isolated United States' laws unenforceable to a large extent" and that legislators should collaborate with foreign governments to establish a uniform policy that facilitates self-regulation).
35. Commentators on the subject have tended to emphasize the international issues raised by Internet gambling. See, e.g., Harley J. Goldstein, On-Line Gambling: Down to the Wire?, 8 MARQ. SPORTS L.J. 1, 51 (1997) (contending that because cyberspace should be treated as its own legal regime, to properly regulate Internet gambling without creating an international conflict of laws, "a regulatory framework must be formed on the international level"); John Edmund Hogan, Comment, World Wide Wager: The Feasibility of Internet Gambling Regulation, 8 SETON HALL CONST. L.J. 815, 827 (1998) ("Internet gambling is far less compatible with conventional legal methodology due to the lack of territorial containment and . . . effective enforcement . . . ."). Others have expressed concerns that the practical enforcement problems spawned by Internet gambling create a reason not to prohibit Internet gambling, but to legalize and regulate it. See Kyl Bill Hearing, supra note 5, at 47 (statement of Sue Schneider, Chairman, Interactive Gaming Council) ("Internet gambling is inevitable. . . . [T]o prohibit this form of home entertainment is simply not realistic."); Nicholas Robbins, Baby Needs a New Pair of Cybershoes: The Legality of Casino Gambling on the Internet, 2 B.U. J. SCI. & TECH. L. 7, 59 (1996) (concluding that if technology outpaces law enforcement, "America may have no choice" but to live with state-sanctioned online gambling); Seth Gorman & Antony Loo, Comment, Blackjack or Bust: Can U.S. Law Stop Internet Gambling?, 16 LOY. L.A. ENT. L.J. 667, 708-09 (1996) (suggesting that "[e]ncryption, digital communications, electronic cash, and tracing difficulties make enforcement of the current statutes against [Internet] casinos virtually impossible" and that applying "antiquated notions of personal jurisdiction to the borderless Internet" may be difficult); Scott M. Montpas, Comment, Gambling On-Line: For a Hundred Dollars, I Bet You Government Regulation Will Not Stop the Newest Form of Gambling, 22 U. DAYTON L. REV. 163, 184-85 (1996) (asserting that "the nature of the Internet renders isolated United States' laws unenforceable to a large extent" and that legislators should collaborate with foreign governments to establish a uniform policy that facilitates self-regulation).
36. Commentators on the subject have tended to emphasize the international issues raised by Internet gambling. See, e.g., Harley J. Goldstein, On-Line Gambling: Down to the Wire?, 8 MARQ. SPORTS L.J. 1, 51 (1997) (contending that because cyberspace should be treated as its own legal regime, to properly regulate Internet gambling without creating an international conflict of laws, "a regulatory framework must be formed on the international level"); John Edmund Hogan, Comment, World Wide Wager: The Feasibility of Internet Gambling Regulation, 8 SETON HALL CONST. L.J. 815, 827 (1998) ("Internet gambling is far less compatible with conventional legal methodology due to the lack of territorial containment and . . . effective enforcement . . . ."). Others have expressed concerns that the practical enforcement problems spawned by Internet gambling create a reason not to prohibit Internet gambling, but to legalize and regulate it. See Kyl Bill Hearing, supra note 5, at 47 (statement of Sue Schneider, Chairman, Interactive Gaming Council) ("Internet gambling is inevitable. . . . [T]o prohibit this form of home entertainment is simply not realistic."); Nicholas Robbins, Baby Needs a New Pair of Cybershoes: The Legality of Casino Gambling on the Internet, 2 B.U. J. SCI. & TECH. L. 7, 59 (1996) (concluding that if technology outpaces law enforcement, "America may have no choice" but to live with state-sanctioned online gambling); Seth Gorman & Antony Loo, Comment, Blackjack or Bust: Can U.S. Law Stop Internet Gambling?, 16 LOY. L.A. ENT. L.J. 667, 708-09 (1996) (suggesting that "[e]ncryption, digital communications, electronic cash, and tracing difficulties make enforcement of the current statutes against [Internet] casinos virtually impossible" and that applying "antiquated notions of personal jurisdiction to the borderless Internet" may be difficult); Scott M. Montpas, Comment, Gambling On-Line: For a Hundred Dollars, I Bet You Government Regulation Will Not Stop the Newest Form of Gambling, 22 U. DAYTON L. REV. 163, 184-85 (1996) (asserting that "the nature of the Internet renders isolated United States' laws unenforceable to a large extent" and that legislators should collaborate with foreign governments to establish a uniform policy that facilitates self-regulation).
37. See infra notes 76-104 and accompanying text.
38. Many courts have successfully applied existing legal doctrine to Internet-related disputes. See, e.g., Panavision Int'l v. Toeppen, 141 F.3d 1316, 1324-26 (9th Cir. 1998) (ruling that defendants' intent to sell an Internet domain name constitutes a "commercial use" for the purposes of the federal Trademark Dilution Act); Tasini v. New York Times, 972 F. Supp. 804, 818-21 (S.D.N.Y. 1997) (applying the concept of "media-neutrality" to conclude that a copyright holder's right to publish a "revision" of collective works includes digital, on-line revisions, even if the digital nature of the medium resulted in differences from the original print publications); Religious Tech. Ctr. v. Netcom On-Line Communication Servs., 907 F. Supp. 1361 (N.D. Cal. 1995) (declining to adopt a purely literal approach to the Copyright Act and concluding that an online service provider was not contributorily or vicariously liable for users' posting of copyrighted material, if the provider had no actual knowledge of infringing acts). I previously have commented on the importance of creative uses of common and statutory law to resolve technology disputes given the time it takes to achieve more comprehensive legislative solutions. See Bruce P. Keller, Condemned To Repeat the Past: The Reemergence of Misappropriation and Other Common Law Theories of Protection for Intellectual Property, 11 HARV. J.L. & TECH. 401 (1998).
39. Many courts have successfully applied existing legal doctrine to Internet-related disputes. See, e.g., Panavision Int'l v. Toeppen, 141 F.3d 1316, 1324-26 (9th Cir. 1998) (ruling that defendants' intent to sell an Internet domain name constitutes a "commercial use" for the purposes of the federal Trademark Dilution Act); Tasini v. New York Times, 972 F. Supp. 804, 818-21 (S.D.N.Y. 1997) (applying the concept of "media-neutrality" to conclude that a copyright holder's right to publish a "revision" of collective works includes digital, on-line revisions, even if the digital nature of the medium resulted in differences from the original print publications); Religious Tech. Ctr. v. Netcom On-Line Communication Servs., 907 F. Supp. 1361 (N.D. Cal. 1995) (declining to adopt a purely literal approach to the Copyright Act and concluding that an online service provider was not contributorily or vicariously liable for users' posting of copyrighted material, if the provider had no actual knowledge of infringing acts). I previously have commented on the importance of creative uses of common and statutory law to resolve technology disputes given the time it takes to achieve more comprehensive legislative solutions. See Bruce P. Keller, Condemned To Repeat the Past: The Reemergence of Misappropriation and Other Common Law Theories of Protection for Intellectual Property, 11 HARV. J.L. & TECH. 401 (1998).
40. Many courts have successfully applied existing legal doctrine to Internet-related disputes. See, e.g., Panavision Int'l v. Toeppen, 141 F.3d 1316, 1324-26 (9th Cir. 1998) (ruling that defendants' intent to sell an Internet domain name constitutes a "commercial use" for the purposes of the federal Trademark Dilution Act); Tasini v. New York Times, 972 F. Supp. 804, 818-21 (S.D.N.Y. 1997) (applying the concept of "media-neutrality" to conclude that a copyright holder's right to publish a "revision" of collective works includes digital, on-line revisions, even if the digital nature of the medium resulted in differences from the original print publications); Religious Tech. Ctr. v. Netcom On-Line Communication Servs., 907 F. Supp. 1361 (N.D. Cal. 1995) (declining to adopt a purely literal approach to the Copyright Act and concluding that an online service provider was not contributorily or vicariously liable for users' posting of copyrighted material, if the provider had no actual knowledge of infringing acts). I previously have commented on the importance of creative uses of common and statutory law to resolve technology disputes given the time it takes to achieve more comprehensive legislative solutions. See Bruce P. Keller, Condemned To Repeat the Past: The Reemergence of Misappropriation and Other Common Law Theories of Protection for Intellectual Property, 11 HARV. J.L. & TECH. 401 (1998).
41. Many courts have successfully applied existing legal doctrine to Internet-related disputes. See, e.g., Panavision Int'l v. Toeppen, 141 F.3d 1316, 1324-26 (9th Cir. 1998) (ruling that defendants' intent to sell an Internet domain name constitutes a "commercial use" for the purposes of the federal Trademark Dilution Act); Tasini v. New York Times, 972 F. Supp. 804, 818-21 (S.D.N.Y. 1997) (applying the concept of "media-neutrality" to conclude that a copyright holder's right to publish a "revision" of collective works includes digital, on-line revisions, even if the digital nature of the medium resulted in differences from the original print publications); Religious Tech. Ctr. v. Netcom On-Line Communication Servs., 907 F. Supp. 1361 (N.D. Cal. 1995) (declining to adopt a purely literal approach to the Copyright Act and concluding that an online service provider was not contributorily or vicariously liable for users' posting of copyrighted material, if the provider had no actual knowledge of infringing acts). I previously have commented on the importance of creative uses of common and statutory law to resolve technology disputes given the time it takes to achieve more comprehensive legislative solutions. See Bruce P. Keller, Condemned To Repeat the Past: The Reemergence of Misappropriation and Other Common Law Theories of Protection for Intellectual Property, 11 HARV. J.L. & TECH. 401 (1998).
42. See infra notes 105-116 and accompanying text.
43. 18 U.S.C. § 1084 (1994); see infra notes 105-116 and accompanying text.
44. Kyl Bill Hearing, supra note 5, at 11 (statement of James E. Doyle, Att'y Gen., State of Wis.). Largely because of the dangers that Internet gambling poses to minors and problem gamblers, the National Gambling Impact Study Commission is expected to "seek a broad ban on online gambling when it issues its report in June [1999]." Online Gambling Ban To Be Recommended When Gaming Study Panel Issues Its Report, 4 Elec. Commerce & L. Rep. (BNA) 261, 261 (Mar. 24, 1999) [hereinafter Online Gambling Ban]. "[C]reated by Congress as an independent body," the Commission will "conduct a comprehensive study of the social and economic impacts of gambling in the United States." Id. at 262.
45. Kyl Bill Hearing, supra note 5, at 11 (statement of James E. Doyle, Att'y Gen., State of Wis.). Largely because of the dangers that Internet gambling poses to minors and problem gamblers, the National Gambling Impact Study Commission is expected to "seek a broad ban on online gambling when it issues its report in June [1999]." Online Gambling Ban To Be Recommended When Gaming Study Panel Issues Its Report, 4 Elec. Commerce & L. Rep. (BNA) 261, 261 (Mar. 24, 1999) [hereinafter Online Gambling Ban]. "[C]reated by Congress as an independent body," the Commission will "conduct a comprehensive study of the social and economic impacts of gambling in the United States." Id. at 262.
46. Kyl Bill Hearing, supra note 5, at 11 (statement of James E. Doyle, Att'y Gen., State of Wis.). Largely because of the dangers that Internet gambling poses to minors and problem gamblers, the National Gambling Impact Study Commission is expected to "seek a broad ban on online gambling when it issues its report in June [1999]." Online Gambling Ban To Be Recommended When Gaming Study Panel Issues Its Report, 4 Elec. Commerce & L. Rep. (BNA) 261, 261 (Mar. 24, 1999) [hereinafter Online Gambling Ban]. "[C]reated by Congress as an independent body," the Commission will "conduct a comprehensive study of the social and economic impacts of gambling in the United States." Id. at 262.
47. Kyl Bill Hearing, supra note 5, at 11 (statement of James E. Doyle, Att'y Gen., State of Wis.). Largely because of the dangers that Internet gambling poses to minors and problem gamblers, the National Gambling Impact Study Commission is expected to "seek a broad ban on online gambling when it issues its report in June [1999]." Online Gambling Ban To Be Recommended When Gaming Study Panel Issues Its Report, 4 Elec. Commerce & L. Rep. (BNA) 261, 261 (Mar. 24, 1999) [hereinafter Online Gambling Ban]. "[C]reated by Congress as an independent body," the Commission will "conduct a comprehensive study of the social and economic impacts of gambling in the United States." Id. at 262.
48. See Greater New Orleans Broad. Ass'n v. United States, 69 F.3d 1296, 1300 (5th Cir. 1995) (ruling that the federal government has an interest in protecting its citizens from gambling that is independent of states' interests in doing so), cert. granted, 119 S. Ct. 863 (1999); see also Online Gambling Ban, supra note 23, at 262 (stating that the recommendation by the Commission's Regulation, Enforcement, and Internet Subcommittee "was prompted by state concerns that the federal government should take the lead in regulating Internet gambling").
49. See Greater New Orleans Broad. Ass'n v. United States, 69 F.3d 1296, 1300 (5th Cir. 1995) (ruling that the federal government has an interest in protecting its citizens from gambling that is independent of states' interests in doing so), cert. granted, 119 S. Ct. 863 (1999); see also Online Gambling Ban, supra note 23, at 262 (stating that the recommendation by the Commission's Regulation, Enforcement, and Internet Subcommittee "was prompted by state concerns that the federal government should take the lead in regulating Internet gambling").
50. Cf. Interstate Horseracing Act of 1978, 15 U.S.C. § 3001(a)(1)-(2) (1994) ("The Congress finds that . . . the states should have the primary responsibility for determining what forms of gambling may legally take place within their borders [and] . . . the Federal Government should prevent interference by one State with the gambling policies of another . . . .").
51. See UTAH CODE ANN. § 76-10-1102 (1953) ("A person is guilty of gambling if he . . . knowingly permits any gambling to be played, conducted, or dealt upon or in any real or personal property owned, rented, or under the control of the actor, whether in whole or in part."). Hawai'i is the only other state to outlaw all forms of gambling. See HAW. REV. STAT. ANN. § 712-1223 (Michie 1994) ("A person commits the offense of gambling if he knowingly advances or participates in any gambling activity. . . . Gambling is a misdemeanor.").
52. See UTAH CODE ANN. § 76-10-1102 (1953) ("A person is guilty of gambling if he . . . knowingly permits any gambling to be played, conducted, or dealt upon or in any real or personal property owned, rented, or under the control of the actor, whether in whole or in part."). Hawai'i is the only other state to outlaw all forms of gambling. See HAW. REV. STAT. ANN. § 712-1223 (Michie 1994) ("A person commits the offense of gambling if he knowingly advances or participates in any gambling activity. . . . Gambling is a misdemeanor.").
53. See NEV. REV. STAT. ANN. § 463.0129 (Michie 1994) ("The legislature hereby finds, and declares it to be the public policy of this state, that . . . [t]he gaming industry is vitally important to the economy of the state and the general welfare of the inhabitants."). See generally O'BRIEN, supra note 3, at 22-57 (describing the evolution of Las Vegas as a gambling mecca).
54. See NEV. REV. STAT. ANN. § 463.0129 (Michie 1994) ("The legislature hereby finds, and declares it to be the public policy of this state, that . . . [t]he gaming industry is vitally important to the economy of the state and the general welfare of the inhabitants."). See generally O'BRIEN, supra note 3, at 22-57 (describing the evolution of Las Vegas as a gambling mecca).
55. See FCC v. ABC, 347 U.S. 284, 290 (1954).
56. See, e.g., KAN. STAT. ANN. § 21-4304(d) (1995) (criminalizing "conducting a lottery, or with intent to conduct a lottery possessing facilities to do so"); MD. ANN. CODE art. 27, § 356 (1996) ("No person shall draw any lottery or sell any lottery ticket in this State; nor shall any person sell . . . anything by which the vendor or other person promises or guarantees that any particular number, character, ticket or certificate shall in any event or on the happening of contingency entitle the purchaser or holder to receive money, property or evidence of debt.") This was not always the case. Lotteries were quite popular in colonial times and "[s]uch elite Ivy League Universities as Harvard, Yale, Princeton, and Columbia were built in part through lotteries." O'BRIEN, supra note 3, at 158; see also A.R. Spofford, Lotteries in American History, in ANNUAL REPORT OF THE AMERICAN HISTORICAL ASSOCIATION FOR THE YEAR 1892, at 171, 171-95 (1893) (describing the use of lotteries to fund both public and private works in the colonial and early federal era).
57. See, e.g., KAN. STAT. ANN. § 21-4304(d) (1995) (criminalizing "conducting a lottery, or with intent to conduct a lottery possessing facilities to do so"); MD. ANN. CODE art. 27, § 356 (1996) ("No person shall draw any lottery or sell any lottery ticket in this State; nor shall any person sell . . . anything by which the vendor or other person promises or guarantees that any particular number, character, ticket or certificate shall in any event or on the happening of contingency entitle the purchaser or holder to receive money, property or evidence of debt.") This was not always the case. Lotteries were quite popular in colonial times and "[s]uch elite Ivy League Universities as Harvard, Yale, Princeton, and Columbia were built in part through lotteries." O'BRIEN, supra note 3, at 158; see also A.R. Spofford, Lotteries in American History, in ANNUAL REPORT OF THE AMERICAN HISTORICAL ASSOCIATION FOR THE YEAR 1892, at 171, 171-95 (1893) (describing the use of lotteries to fund both public and private works in the colonial and early federal era).
58. See, e.g., KAN. STAT. ANN. § 21-4304(d) (1995) (criminalizing "conducting a lottery, or with intent to conduct a lottery possessing facilities to do so"); MD. ANN. CODE art. 27, § 356 (1996) ("No person shall draw any lottery or sell any lottery ticket in this State; nor shall any person sell . . . anything by which the vendor or other person promises or guarantees that any particular number, character, ticket or certificate shall in any event or on the happening of contingency entitle the purchaser or holder to receive money, property or evidence of debt.") This was not always the case. Lotteries were quite popular in colonial times and "[s]uch elite Ivy League Universities as Harvard, Yale, Princeton, and Columbia were built in part through lotteries." O'BRIEN, supra note 3, at 158; see also A.R. Spofford, Lotteries in American History, in ANNUAL REPORT OF THE AMERICAN HISTORICAL ASSOCIATION FOR THE YEAR 1892, at 171, 171-95 (1893) (describing the use of lotteries to fund both public and private works in the colonial and early federal era).
59. See, e.g., KAN. STAT. ANN. § 21-4304(d) (1995) (criminalizing "conducting a lottery, or with intent to conduct a lottery possessing facilities to do so"); MD. ANN. CODE art. 27, § 356 (1996) ("No person shall draw any lottery or sell any lottery ticket in this State; nor shall any person sell . . . anything by which the vendor or other person promises or guarantees that any particular number, character, ticket or certificate shall in any event or on the happening of contingency entitle the purchaser or holder to receive money, property or evidence of debt.") This was not always the case. Lotteries were quite popular in colonial times and "[s]uch elite Ivy League Universities as Harvard, Yale, Princeton, and Columbia were built in part through lotteries." O'BRIEN, supra note 3, at 158; see also A.R. Spofford, Lotteries in American History, in ANNUAL REPORT OF THE AMERICAN HISTORICAL ASSOCIATION FOR THE YEAR 1892, at 171, 171-95 (1893) (describing the use of lotteries to fund both public and private works in the colonial and early federal era).
60. See North American Ass'n of State & Provincial Lotteries, Data Compiled Regarding FY 1998 vs. FY 1997 Lottery Sales and Profits (1998) (on file with The Yale Law Journal).
61. See 1 CABOT, supra note 4, at 29.
62. Twenty-three states allow casino gambling, while two other states host casino "crusies to nowhere," where the gambling takes place in international waters. See National Coalition Against Legalized Gambling, NCALG Fact Sheets: Legalized Gambling Has Rapidly Expanded (visited Feb. 22,1999) 〈http://www.ncalg.org/pages/ftshts.htm〉.
63. See id.; see also Jon Bigness, Companies Place Bets on Internet Gambling, CHI. TRIB., Aug. 25, 1997, at 1, 4 ("[S]ome form of gambling is legal in just about every state and . . . more than half of all states have casino establishments . . . ."). As a result of the Indian Regulatory Gaming Act, 25 U.S.C. § 2701(21) (1994), Indian tribes have the right to operate gambling casinos on Indian lands. See id. § 2701(5).
64. See O'BRIEN, supra note 3, at 4; Bigness, supra note 33, at 2.
65. See, e.g., VA. CODE ANN. § 58.1-4007.1A (Michie 1997 & Supp. 1998) ("All lottery tickets printed after July 1, 1997, shall bear a toll-free telephone number for 'Gamblers Anonymous' or other organization which provides assistance to compulsive gamblers."); id. § 59.1-369.3 ("[L]icensees [shall] post, in a conspicuous place in every place where pari-mutuel wagering is conducted, a sign which bears a toll-free telephone number for 'Gamblers Anonymous' or other organization which provides assistance to compulsive gamblers.").
66. See, e.g., VA. CODE ANN. § 58.1-4007.1A (Michie 1997 & Supp. 1998) ("All lottery tickets printed after July 1, 1997, shall bear a toll-free telephone number for 'Gamblers Anonymous' or other organization which provides assistance to compulsive gamblers."); id. § 59.1-369.3 ("[L]icensees [shall] post, in a conspicuous place in every place where pari-mutuel wagering is conducted, a sign which bears a toll-free telephone number for 'Gamblers Anonymous' or other organization which provides assistance to compulsive gamblers.").
67. See, e.g., IOWA CODE ANN. § 99E.10.1.a (West 1996) ("An amount equal to three-tenths of one percent of the gross lottery revenue shall be deposited in a gamblers assistance fund in the office of the treasurer of the state."). Notwithstanding these programs, it is fair to question the strength of legislative convictions about the evils of gambling in light of the number of states that run lotteries and the numerous exceptions carved out of antigambling states. See, e.g., Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294, 1303 (3d Cir. 1996) (considering, but ultimately rejecting, the argument that because the majority of states have legalized lotteries, lotteries may not be prohibited on moral grounds); Players Int'l v. United States, 988 F. Supp. 497, 506-07 (D.N.J. 1997) (expressing concern over the manner in which the federal policy of banning certain casino advertising is subverted by numerous exceptions).
68. See, e.g., IOWA CODE ANN. § 99E.10.1.a (West 1996) ("An amount equal to three-tenths of one percent of the gross lottery revenue shall be deposited in a gamblers assistance fund in the office of the treasurer of the state."). Notwithstanding these programs, it is fair to question the strength of legislative convictions about the evils of gambling in light of the number of states that run lotteries and the numerous exceptions carved out of antigambling states. See, e.g., Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294, 1303 (3d Cir. 1996) (considering, but ultimately rejecting, the argument that because the majority of states have legalized lotteries, lotteries may not be prohibited on moral grounds); Players Int'l v. United States, 988 F. Supp. 497, 506-07 (D.N.J. 1997) (expressing concern over the manner in which the federal policy of banning certain casino advertising is subverted by numerous exceptions).
69. See, e.g., IOWA CODE ANN. § 99E.10.1.a (West 1996) ("An amount equal to three-tenths of one percent of the gross lottery revenue shall be deposited in a gamblers assistance fund in the office of the treasurer of the state."). Notwithstanding these programs, it is fair to question the strength of legislative convictions about the evils of gambling in light of the number of states that run lotteries and the numerous exceptions carved out of antigambling states. See, e.g., Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294, 1303 (3d Cir. 1996) (considering, but ultimately rejecting, the argument that because the majority of states have legalized lotteries, lotteries may not be prohibited on moral grounds); Players Int'l v. United States, 988 F. Supp. 497, 506-07 (D.N.J. 1997) (expressing concern over the manner in which the federal policy of banning certain casino advertising is subverted by numerous exceptions).
70. See, e.g., United States v. Edge Broad., 509 U.S. 418, 421 (1993) (noting that "Congress has, since the early 19th century, sought to assist the States" in their respective efforts).
71. Valley Broad. v. United States, 107 F.3d 1328, 1329 (9th Cir. 1997), cert. denied, 118 S. Ct. 1050 (1998). Interestingly, in the early 1800s, Congress itself improperly authorized the sale of "National Lottery" tickets in states where lotteries are illegal. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) (upholding the indictment in Virginia of agents selling lottery tickets authorized by Congress to raise money for a canal in the District of Columbia and Maryland).
72. Valley Broad. v. United States, 107 F.3d 1328, 1329 (9th Cir. 1997), cert. denied, 118 S. Ct. 1050 (1998). Interestingly, in the early 1800s, Congress itself improperly authorized the sale of "National Lottery" tickets in states where lotteries are illegal. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) (upholding the indictment in Virginia of agents selling lottery tickets authorized by Congress to raise money for a canal in the District of Columbia and Maryland).
73. 18 U.S.C. § 1084 (1994).
74. See infra notes 58-75 and accompanying text.
75. Act of Mar. 2, 1827, ch. 61, § 6, 4 Stat. 238.
76. Act of July 27, 1868, ch. 246, § 13, 15 Stat. 196.
77. See Anti-Lottery Act of 1890, ch. 908, § 1, 26 Stat. 465.
78. See id. The current iteration of this prohibition is found at 18 U.S.C. § 1301 (1994).
79. See Act of June 19, 1934, Pub. L. No. 73-416, ch. 652, § 316, 48 Stat. 1064, 1088. The current prohibition on such broadcasts is found at 18 U.S.C. § 1304. Courts have split on the constitutionality of this prohibition. In United States v. Valley Broadcasting Co., 107 F.3d 1328 (9th Cir. 1997), cert. denied, 118 S. Ct. 1050 (1998), and Players International v. United States, 988 F. Supp. 497 (D.N.J. 1997), the courts determined that the prohibition, as applied to broadcast advertisements in Nevada and New Jersey, respectively, for legal casino gambling, violated the casino operators' First Amendment rights. Both courts based their holdings largely on the exemption from the ban that allows casinos operated on Indian reservations to advertise on television, reasoning that this exemption effectively undercuts the desired effect of the ban. See Valley Broad., 107 F.3d at 1336; Players Int'l, 988 F. Supp. at 506. In Greater New Orleans Broadcasting Ass'n v. United States, 149 F.3d 334, 338 (5th Cir. 1998), cert. granted, 119 S. Ct. 863 (1999), however, the Fifth Circuit reached the opposite conclusion regarding broadcast advertising for legal casino gambling in Louisiana and Mississippi, holding that "[t]he government may legitimately distinguish among certain kinds of gambling for advertising purposes, determining that the social impact of activities such as state-run lotteries, Indian and charitable gambling include social benefits as well as costs and that these other activities often have dramatically different geographic scope." The circuit split will likely be
80. Pub. L. No. 416, ch. 652, § 316, 48 Stat. at 1088.
81. See FCC v. ABC, 347 U.S. 284, 290 (1954) (stating that 18 U.S.C. § 1304 prohibits any form of gambling where prizes are awarded, according to chance, for consideration). The Court, however, rejected the FCC's argument that radio and television quiz shows that gave away prizes to contestants at home fell within this broad definition, holding that tuning into these programs did not constitute consideration. See id. at 294.
82. See FCC v. ABC, 347 U.S. 284, 290 (1954) (stating that 18 U.S.C. § 1304 prohibits any form of gambling where prizes are awarded, according to chance, for consideration). The Court, however, rejected the FCC's argument that radio and television quiz shows that gave away prizes to contestants at home fell within this broad definition, holding that tuning into these programs did not constitute consideration. See id. at 294.
83. See, e.g., Greater New Orleans Broad. Ass'n v. United States, 69 F.3d 1296, 1298-99 (5th Cir. 1995) (holding that § 1304 prohibits advertising for casino gambling), cert. granted, 119 S. Ct. 863 (1999); Players Int'l v. United States, 988 F. Supp. 497, 506 (D.N.J. 1997) (holding that broadcasts for casino gaming fall within the prohibition of § 1304).
84. See supra note 30 and accompanying text.
85. See, e.g., United States v. Steubben, 799 F.2d 225 (5th Cir. 1986) (affirming the conviction of the operator of a company engaged in this business under, inter alia, 18 U.S.C. § 1301).
86. See Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294, 1297 (3d Cir. 1996).
87. See id.
88. See Violent Crime Control and Law Enforcement Act of 1994 § 320,905, Pub. L. No. 103-222, 108 Stat. 1796, 2126 (amending 18 U.S.C. § 1301).
89. Id.; see also Pic-A-State Pa., 76 F.3d at 1297 (noting the amendment of § 1301 from penalizing one who "carries" lottery tickets to one who "transmits" such tickets).
90. See Pic-A-State Pa., 76 F.3d at 1302; see also Valley Broad, v. United States, 107 F.3d 1328, 1335 (9th Cir. 1997) (striking down on First Amendment grounds § 1304's ban on broadcast advertising of casino gambling, despite the government's asserted interest "'to assist states that prohibit casino gambling . . . by regulating interstate activities such as broadcasting that are beyond the powers of individual states to regulate'"), cert. denied, 118 S. Ct. 1050 (1998).
91. 18 U.S.C. § 1084 (1994). Section 1084 serves the twin purposes of assisting states in their respective approaches to gambling and suppressing gambling overall. See United States v. McDonough, 835 F.2d 1103, 1104-05 (5th Cir. 1988) (explaining that the dual purposes of § 1084 are to assist state law enforcement "'and to aid in the suppression of organized gambling activities'" (quoting H.R. REP. No. 967 (1961), reprinted in 1961 U.S.C.C.A.N. 2631, 2633)).
92. Its companion laws were the Travel Act, 18 U.S.C. § 1952 (1994), which outlawed "travel[] in interstate or foreign commerce or [use] . . . [of] the mail" in furtherance of "unlawful activity," including "any business enterprise involving gambling"; the Interstate Transportation of Wagering Paraphernalia Act ("ITWPA"), 18 U.S.C. § 1953 (1994), which rendered unlawful the introduction into interstate commerce of "any record, paraphernalia, ticket, certificate, bills, slip, token, paper, writing or other device used, or to be used" in gambling; and 18 U.S.C. § 1955 (1994), which prohibited owning or operating an illegal gambling business, which is defined as a gambling business that violates state law, involves five or more persons and either is in substantially continuous operation for more than 30 days or has a gross revenue of more than $2000 in any single day.
93. Internet gambling sites, as currently operated, appear to violate several of the provisions of these acts. For instance, the allegations in the Southern District of New York prosecutions recount the use of the mails and telephone to provide information and set up accounts for gamblers, in violation of 18 U.S.C. § 1952. See infra notes 108-113, 172-174, 196-209 and accompanying text. Similarly, operations involving five or more persons violate § 1955, and the shipping, via interstate commerce, of the hardware and software needed to run the offshore computers may violate § 1953.
94. 18 U.S.C. § 1084(a) (1994).
95. A "wire communication facility" is broadly defined in 18 U.S.C. § 1081 as any form of instrumentality or service "used or useful in the transmissions of writings, signs, pictures and sounds of all kinds by aid of wire, cable or other like connection." As the legislative history to § 1084 makes clear, Congress adopted a broad definition of "wire communication facility" in part because of the recognition that "[m]odern bookmaking depends in large measure on the rapid transmission of gambling information." H.R. REP. No. 87-967, at 2 (1961), reprinted in 1961 U.S.C.C.A.N. 2631, 2631-32.
96. See Sagansky v. United States, 358 F.2d 195, 200 (1st Cir. 1966) ("[Section] 1084(a) does not punish the mere transmission of bets or wagers, but rather the 'use' of interstate wire communication facilities for their transmission.").
97. See supra note 57.
98. 18 U.S.C. § 1084(b) ("Nothing in this section shall be construed to prevent the transmission . . . of information for use in news reporting . . . or for the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal."); see also Telephone News Sys. v. Illinois Bell Tel. Co., 220 F. Supp. 621, 627 (N.D. 111. 1963) (finding that § 1084(b) only exempts "certain types of transmissions - those of information for use in news reporting and those sent from a state where the betting is legal to another state where betting is legal").
99. 18 U.S.C. § 1084(b) ("Nothing in this section shall be construed to prevent the transmission . . . of information for use in news reporting . . . or for the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal."); see also Telephone News Sys. v. Illinois Bell Tel. Co., 220 F. Supp. 621, 627 (N.D. 111. 1963) (finding that § 1084(b) only exempts "certain types of transmissions - those of information for use in news reporting and those sent from a state where the betting is legal to another state where betting is legal").
100. H.R. REP. No. 87-967, at 3 (1961). As the report continues: [p]hrased differently, the transmission of gambling information on a horserace from a State where betting on that horserace is legal to a state where betting on the same horserace is legal is not within the prohibitions of the bill. Since Nevada is the only State which has legalized offtrack betting, this exemption will only be applicable to it. Id.
101. The question of whether an unlawful transmission has occurred has, in other contexts, led courts to focus on whether bets were placed or received. See United States v. Tomeo, 459 F.2d 445 (10th Cir. 1972) (summarizing cases reflecting a split in authority); United States v. Reeder, 614 F.2d 1179, 1184 (8th Cir. 1980) (concluding that the "prevailing view" is that § 1084(a) covers the use of wire communications facilities by those in the gambling business, whether sending, receiving, or both is involved). To avoid the application of § 1084(a), an offshore cybercasino would have to argue that its server does not use the Internet to transmit anything at all, an argument that is contrary to common sense and established case law. In Minnesota v. Granite Gate Resorts, No. C6-95-7227, 1996 WL 767431 (Minn. Dist. Ct. Dec. 11, 1996), "the contention of Defendants [was] that WagerNet has transmitted nothing over the Internet and that the only person in this case who would transmit anything would be Minnesota residents who contact Wager Net." Id. at *8. The court properly found this proposition absurd: [W]hen the Minnesota user plugs in the URL address for Vegas.Com, if Vegas.Com did not send an electronic transmission back to the computer user, the computer user would see nothing. He or she would see a blank screen. The way that the pictures and words get to the Minnesota residents is by the server, Vegas.com, automatically transmitting it back to the Minnesota resident. . . . [O]ne who sets up his or her system and knows that anyone accessing his or her site will get that information, then the server ought to be held responsible for that information. Id. (citing Playboy Enters, v. Chuckleberry Publ'g Co., 939 F. Supp. 1032, 1044 (S.D.N.Y. 1996)); see also United States v. Kammersell, 7 F. Supp. 2d 1196, 1200 (D. Utah 1998) (holding that the "use of an Internet server by defendant" for an interstate message constituted a transmission).
102. Cf. Debra Baker, Betting on Cyberspace, A.B.A. J., Mar. 1999, at 54, 56 ("Although many computer modems run over telephone wires, the complexities of Internet transmissions, as well as satellite technology, make it unclear whether all Internet communications will fall within the scope of the [Kyl Bill]."). Although connections to the Internet may be made wirelessly, connections within the Internet still depend on wires, making it a "wire communication facility." See PRESTON GRALLA, How THE INTERNET WORKS 5-7 (4th ed. 1998) ("[L]ines that connect networks can be as simple as a single telephone line or as complex as a fiber-optic cable with microwave links and satellite transmissions."). Moreover, the legislative history of the Act makes clear that Congress intended to exclude wireless communication only for fear of treading on the rights of broadcasters. The only kinds of wireless communication specifically excluded are radio and television broadcasts: There is nothing in this bill which would in any way affect the press, radio or TV in its reporting of sporting events. In fact, wireless communication was not included in this bill because it is our belief that the Federal Communications Commission has ample authority to control the misuse of this means of communication. S. REP. No. 87-588, at 3 (1961).
103. Cf. Debra Baker, Betting on Cyberspace, A.B.A. J., Mar. 1999, at 54, 56 ("Although many computer modems run over telephone wires, the complexities of Internet transmissions, as well as satellite technology, make it unclear whether all Internet communications will fall within the scope of the [Kyl Bill]."). Although connections to the Internet may be made wirelessly, connections within the Internet still depend on wires, making it a "wire communication facility." See PRESTON GRALLA, How THE INTERNET WORKS 5-7 (4th ed. 1998) ("[L]ines that connect networks can be as simple as a single telephone line or as complex as a fiber-optic cable with microwave links and satellite transmissions."). Moreover, the legislative history of the Act makes clear that Congress intended to exclude wireless communication only for fear of treading on the rights of broadcasters. The only kinds of wireless communication specifically excluded are radio and television broadcasts: There is nothing in this bill which would in any way affect the press, radio or TV in its reporting of sporting events. In fact, wireless communication was not included in this bill because it is our belief that the Federal Communications Commission has ample authority to control the misuse of this means of communication. S. REP. No. 87-588, at 3 (1961).
104. 18 U.S.C. § 1084(a) (1994) (emphasis added).
105. Id. (emphasis added).
106. Id. (emphasis added).
107. See, e.g., H.R. REP. No. 87-967, at 2-4 (1961); S. REP. No. 87-588, at 2-5 (1961).
108. See United States v. Segal, 867 F.2d 1173, 1175 (8th Cir. 1989); United States v. Stonehouse, 452 F.2d 455, 456 (7th Cir. 1971); Telephone News Sys. v. Illinois Bell Tel., 220 F. Supp. 621, 624 (N.D. 111. 1963); see also PILEGGI, supra note 1, at 67 ("Robert Kennedy had pushed a bill through Congress prohibiting the interstate transmission of any gambling information, making Lefty's phone calls about team injuries, lineups, odds, and even weather conditions against the law and subjecting him to arrest.").
109. See, e.g., United States v. Chase, 372 F.2d 453, 457 (4th Cir. 1967); United States v. Giovanelli, 747 F. Supp. 897, 902 (S.D.N.Y. 1989); United States v. Manetti, 323 F. Supp. 683, 687 (D. Del. 1971). Moreover, although there is no reported decision on point, the Justice Department and several state attorneys general have taken the position that "sporting" does not modify "contest" and that casino-type gaming is a "contest" also prohibited under the Act. See 2 CABOT, supra note 4, at 115 & n.117 ("[T]he Justice Department holds the position that gambling on the Internet is illegal under Section 1084."); id. at 114 n.111 (citing a private letter ruling by the Texas Attorney General, Tex. Priv. Ltr. Rul. DM-344 (May 2, 1995), that Internet card games violate § 1084); see also INTERNET TASK FORCE, INTERNET GAMBLING STAFF SUBCOMM., NATIONAL ASS'N OF ATTORNEYS GEN., GAMBLING ON THE INTERNET 17-18 (1996) (discussing the application of Wire Wager Act beyond sports).
110. See, e.g., United States v. Chase, 372 F.2d 453, 457 (4th Cir. 1967); United States v. Giovanelli, 747 F. Supp. 897, 902 (S.D.N.Y. 1989); United States v. Manetti, 323 F. Supp. 683, 687 (D. Del. 1971). Moreover, although there is no reported decision on point, the Justice Department and several state attorneys general have taken the position that "sporting" does not modify "contest" and that casino-type gaming is a "contest" also prohibited under the Act. See 2 CABOT, supra note 4, at 115 & n.117 ("[T]he Justice Department holds the position that gambling on the Internet is illegal under Section 1084."); id. at 114 n.111 (citing a private letter ruling by the Texas Attorney General, Tex. Priv. Ltr. Rul. DM-344 (May 2, 1995), that Internet card games violate § 1084); see also INTERNET TASK FORCE, INTERNET GAMBLING STAFF SUBCOMM., NATIONAL ASS'N OF ATTORNEYS GEN., GAMBLING ON THE INTERNET 17-18 (1996) (discussing the application of Wire Wager Act beyond sports).
111. See, e.g., United States v. Chase, 372 F.2d 453, 457 (4th Cir. 1967); United States v. Giovanelli, 747 F. Supp. 897, 902 (S.D.N.Y. 1989); United States v. Manetti, 323 F. Supp. 683, 687 (D. Del. 1971). Moreover, although there is no reported decision on point, the Justice Department and several state attorneys general have taken the position that "sporting" does not modify "contest" and that casino-type gaming is a "contest" also prohibited under the Act. See 2 CABOT, supra note 4, at 115 & n.117 ("[T]he Justice Department holds the position that gambling on the Internet is illegal under Section 1084."); id. at 114 n.111 (citing a private letter ruling by the Texas Attorney General, Tex. Priv. Ltr. Rul. DM-344 (May 2, 1995), that Internet card games violate § 1084); see also INTERNET TASK FORCE, INTERNET GAMBLING STAFF SUBCOMM., NATIONAL ASS'N OF ATTORNEYS GEN., GAMBLING ON THE INTERNET 17-18 (1996) (discussing the application of Wire Wager Act beyond sports).
112. See, e.g., United States v. Chase, 372 F.2d 453, 457 (4th Cir. 1967); United States v. Giovanelli, 747 F. Supp. 897, 902 (S.D.N.Y. 1989); United States v. Manetti, 323 F. Supp. 683, 687 (D. Del. 1971). Moreover, although there is no reported decision on point, the Justice Department and several state attorneys general have taken the position that "sporting" does not modify "contest" and that casino-type gaming is a "contest" also prohibited under the Act. See 2 CABOT, supra note 4, at 115 & n.117 ("[T]he Justice Department holds the position that gambling on the Internet is illegal under Section 1084."); id. at 114 n.111 (citing a private letter ruling by the Texas Attorney General, Tex. Priv. Ltr. Rul. DM-344 (May 2, 1995), that Internet card games violate § 1084); see also INTERNET TASK FORCE, INTERNET GAMBLING STAFF SUBCOMM., NATIONAL ASS'N OF ATTORNEYS GEN., GAMBLING ON THE INTERNET 17-18 (1996) (discussing the application of Wire Wager Act beyond sports).
113. See, e.g., United States v. Chase, 372 F.2d 453, 457 (4th Cir. 1967); United States v. Giovanelli, 747 F. Supp. 897, 902 (S.D.N.Y. 1989); United States v. Manetti, 323 F. Supp. 683, 687 (D. Del. 1971). Moreover, although there is no reported decision on point, the Justice Department and several state attorneys general have taken the position that "sporting" does not modify "contest" and that casino-type gaming is a "contest" also prohibited under the Act. See 2 CABOT, supra note 4, at 115 & n.117 ("[T]he Justice Department holds the position that gambling on the Internet is illegal under Section 1084."); id. at 114 n.111 (citing a private letter ruling by the Texas Attorney General, Tex. Priv. Ltr. Rul. DM-344 (May 2, 1995), that Internet card games violate § 1084); see also INTERNET TASK FORCE, INTERNET GAMBLING STAFF SUBCOMM., NATIONAL ASS'N OF ATTORNEYS GEN., GAMBLING ON THE INTERNET 17-18 (1996) (discussing the application of Wire Wager Act beyond sports).
114. See, e.g., United States v. Chase, 372 F.2d 453, 457 (4th Cir. 1967); United States v. Giovanelli, 747 F. Supp. 897, 902 (S.D.N.Y. 1989); United States v. Manetti, 323 F. Supp. 683, 687 (D. Del. 1971). Moreover, although there is no reported decision on point, the Justice Department and several state attorneys general have taken the position that "sporting" does not modify "contest" and that casino-type gaming is a "contest" also prohibited under the Act. See 2 CABOT, supra note 4, at 115 & n.117 ("[T]he Justice Department holds the position that gambling on the Internet is illegal under Section 1084."); id. at 114 n.111 (citing a private letter ruling by the Texas Attorney General, Tex. Priv. Ltr. Rul. DM-344 (May 2, 1995), that Internet card games violate § 1084); see also INTERNET TASK FORCE, INTERNET GAMBLING STAFF SUBCOMM., NATIONAL ASS'N OF ATTORNEYS GEN., GAMBLING ON THE INTERNET 17-18 (1996) (discussing the application of Wire Wager Act beyond sports).
115. When, in 1893, the last State lottery was forced out of business in the United States, lotteries were replaced in popularity with the numbers racket, which remained a lucrative business for organized crime until state-authorized lotteries began to reappear in the mid-1960s. See O'BRIEN, supra note 3, at 158-63.
116. S. 474, 105th Cong. (1997).
117. H.R. 4276, 105th Cong. (1998). As the House version of the bill provides: [I]t shall be unlawful for a person knowingly to use the Internet or any other interactive computer service . . . to place, receive, or otherwise make a bet or wager with any person; or . . . to send, receive, or invite information assisting in the placing of a bet or wager with the intent to send, receive, or invite information assisting in the placing of a bet or wager. Id.
118. See Pub. L. No. 87-216, § 2, 75 Stat. 491 (1961).
119. For example, the 1876 statute prohibiting the use of the mails to promote both illegal and state-authorized lotteries was challenged unsuccessfully on First Amendment grounds. See Ex parte Jackson, 96 U.S. 727 (1877) (upholding the Act of July 12, 1876, 19 Stat. 90). When lotteries resorted to advertising in newspapers and Congress reacted by outlawing the mailing of newspapers carrying such advertisements, that Act also was challenged and upheld. See In re Rapier, 143 U.S. 110 (1892) (upholding the Anti-Lottery Act of 1890, ch. 908, § 1, 26 Stat. 465).
120. See, e.g., United States v. Borgese, 235 F. Supp. 286, 295-97 (S.D.N.Y. 1964); United States v. Smith, 209 F. Supp. 907, 918 (E.D. 111. 1962).
121. See infra notes 80-90 and accompanying text.
122. 509 U.S. 418 (1993).
123. See id. at 422.
124. See id.
125. See id. at 421. This remarkably persistent lottery - apparently the last of the state lotteries until New Hampshire revived its system in the 1960s - was chartered by the Louisiana legislature on August 11, 1868, and given a monopoly on sales of lottery tickets within that state, partly in self-defense, because "many millions of dollars have been withdrawn from and lost to this State by the sale of Havana, Kentucky, and Madrid and other lottery tickets, thereby impoverishing our own people." Spofford, supra note 29, at 190 (quoting an anonymous source). In return, the Lottery paid $40,000 per year to the state treasury out of profits that approached one million dollars annually. When, in 1879, the legislature repealed its grant, the Lottery successfully lobbied a state constitutional convention for reinstatement. In 1890, faced again with extinction, the Lottery promised the legislature $1.25 million annually for a 25-year franchise extension. This proposal was vetoed by the governor. See id. at 190-92. After long judicial proceedings, the Lottery moved to Honduras, leading Congress, in 1895, to add "foreign" to the type of commerce in which lottery ticket trafficking was illegal. See Edge Broad., 509 U.S. at 422. The Louisiana Lottery's unsavory character, its ubiquity, and its resistance to attempts to kill it earned it the nickname "Serpent" and condemnation as "this hydra-headed monster, which is demoralizing the young, the poor, and the needy throughout the country, as no institution in America has ever done." G. Robert Blakey & Harold A. Kurland, The Development of the Federal Law of Gambling, 63 CORNELL L. REV. 923, 937-39 (1978) (quoting Rep. Moore); see also O'BRIEN, supra note 3, at 106-08 (tracing the Louisiana Lottery to its ultimate demise in Honduras in 1907).
126. See id. at 421. This remarkably persistent lottery - apparently the last of the state lotteries until New Hampshire revived its system in the 1960s - was chartered by the Louisiana legislature on August 11, 1868, and given a monopoly on sales of lottery tickets within that state, partly in self-defense, because "many millions of dollars have been withdrawn from and lost to this State by the sale of Havana, Kentucky, and Madrid and other lottery tickets, thereby impoverishing our own people." Spofford, supra note 29, at 190 (quoting an anonymous source). In return, the Lottery paid $40,000 per year to the state treasury out of profits that approached one million dollars annually. When, in 1879, the legislature repealed its grant, the Lottery successfully lobbied a state constitutional convention for reinstatement. In 1890, faced again with extinction, the Lottery promised the legislature $1.25 million annually for a 25-year franchise extension. This proposal was vetoed by the governor. See id. at 190-92. After long judicial proceedings, the Lottery moved to Honduras, leading Congress, in 1895, to add "foreign" to the type of commerce in which lottery ticket trafficking was illegal. See Edge Broad., 509 U.S. at 422. The Louisiana Lottery's unsavory character, its ubiquity, and its resistance to attempts to kill it earned it the nickname "Serpent" and condemnation as "this hydra-headed monster, which is demoralizing the young, the poor, and the needy throughout the country, as no institution in America has ever done." G. Robert Blakey & Harold A. Kurland, The Development of the Federal Law of Gambling, 63 CORNELL L. REV. 923, 937-39 (1978) (quoting Rep. Moore); see also O'BRIEN, supra note 3, at 106-08 (tracing the Louisiana Lottery to its ultimate demise in Honduras in 1907).
127. See id. at 421. This remarkably persistent lottery - apparently the last of the state lotteries until New Hampshire revived its system in the 1960s - was chartered by the Louisiana legislature on August 11, 1868, and given a monopoly on sales of lottery tickets within that state, partly in self-defense, because "many millions of dollars have been withdrawn from and lost to this State by the sale of Havana, Kentucky, and Madrid and other lottery tickets, thereby impoverishing our own people." Spofford, supra note 29, at 190 (quoting an anonymous source). In return, the Lottery paid $40,000 per year to the state treasury out of profits that approached one million dollars annually. When, in 1879, the legislature repealed its grant, the Lottery successfully lobbied a state constitutional convention for reinstatement. In 1890, faced again with extinction, the Lottery promised the legislature $1.25 million annually for a 25-year franchise extension. This proposal was vetoed by the governor. See id. at 190-92. After long judicial proceedings, the Lottery moved to Honduras, leading Congress, in 1895, to add "foreign" to the type of commerce in which lottery ticket trafficking was illegal. See Edge Broad., 509 U.S. at 422. The Louisiana Lottery's unsavory character, its ubiquity, and its resistance to attempts to kill it earned it the nickname "Serpent" and condemnation as "this hydra-headed monster, which is demoralizing the young, the poor, and the needy throughout the country, as no institution in America has ever done." G. Robert Blakey & Harold A. Kurland, The Development of the Federal Law of Gambling, 63 CORNELL L. REV. 923, 937-39 (1978) (quoting Rep. Moore); see also O'BRIEN, supra note 3, at 106-08 (tracing the Louisiana Lottery to its ultimate demise in Honduras in 1907).
128. See id. at 421. This remarkably persistent lottery - apparently the last of the state lotteries until New Hampshire revived its system in the 1960s - was chartered by the Louisiana legislature on August 11, 1868, and given a monopoly on sales of lottery tickets within that state, partly in self-defense, because "many millions of dollars have been withdrawn from and lost to this State by the sale of Havana, Kentucky, and Madrid and other lottery tickets, thereby impoverishing our own people." Spofford, supra note 29, at 190 (quoting an anonymous source). In return, the Lottery paid $40,000 per year to the state treasury out of profits that approached one million dollars annually. When, in 1879, the legislature repealed its grant, the Lottery successfully lobbied a state constitutional convention for reinstatement. In 1890, faced again with extinction, the Lottery promised the legislature $1.25 million annually for a 25-year franchise extension. This proposal was vetoed by the governor. See id. at 190-92. After long judicial proceedings, the Lottery moved to Honduras, leading Congress, in 1895, to add "foreign" to the type of commerce in which lottery ticket trafficking was illegal. See Edge Broad., 509 U.S. at 422. The Louisiana Lottery's unsavory character, its ubiquity, and its resistance to attempts to kill it earned it the nickname "Serpent" and condemnation as "this hydra-headed monster, which is demoralizing the young, the poor, and the needy throughout the country, as no institution in America has ever done." G. Robert Blakey & Harold A. Kurland, The Development of the Federal Law of Gambling, 63 CORNELL L. REV. 923, 937-39 (1978) (quoting Rep. Moore); see also O'BRIEN, supra note 3, at 106-08 (tracing the Louisiana Lottery to its ultimate demise in Honduras in 1907).
129. See id. at 421. This remarkably persistent lottery - apparently the last of the state lotteries until New Hampshire revived its system in the 1960s - was chartered by the Louisiana legislature on August 11, 1868, and given a monopoly on sales of lottery tickets within that state, partly in self-defense, because "many millions of dollars have been withdrawn from and lost to this State by the sale of Havana, Kentucky, and Madrid and other lottery tickets, thereby impoverishing our own people." Spofford, supra note 29, at 190 (quoting an anonymous source). In return, the Lottery paid $40,000 per year to the state treasury out of profits that approached one million dollars annually. When, in 1879, the legislature repealed its grant, the Lottery successfully lobbied a state constitutional convention for reinstatement. In 1890, faced again with extinction, the Lottery promised the legislature $1.25 million annually for a 25-year franchise extension. This proposal was vetoed by the governor. See id. at 190-92. After long judicial proceedings, the Lottery moved to Honduras, leading Congress, in 1895, to add "foreign" to the type of commerce in which lottery ticket trafficking was illegal. See Edge Broad., 509 U.S. at 422. The Louisiana Lottery's unsavory character, its ubiquity, and its resistance to attempts to kill it earned it the nickname "Serpent" and condemnation as "this hydra-headed monster, which is demoralizing the young, the poor, and the needy throughout the country, as no institution in America has ever done." G. Robert Blakey & Harold A. Kurland, The Development of the Federal Law of Gambling, 63 CORNELL L. REV. 923, 937-39 (1978) (quoting Rep. Moore); see also O'BRIEN, supra note 3, at 106-08 (tracing the Louisiana Lottery to its ultimate demise in Honduras in 1907).
130. See id. at 421. This remarkably persistent lottery - apparently the last of the state lotteries until New Hampshire revived its system in the 1960s - was chartered by the Louisiana legislature on August 11, 1868, and given a monopoly on sales of lottery tickets within that state, partly in self-defense, because "many millions of dollars have been withdrawn from and lost to this State by the sale of Havana, Kentucky, and Madrid and other lottery tickets, thereby impoverishing our own people." Spofford, supra note 29, at 190 (quoting an anonymous source). In return, the Lottery paid $40,000 per year to the state treasury out of profits that approached one million dollars annually. When, in 1879, the legislature repealed its grant, the Lottery successfully lobbied a state constitutional convention for reinstatement. In 1890, faced again with extinction, the Lottery promised the legislature $1.25 million annually for a 25-year franchise extension. This proposal was vetoed by the governor. See id. at 190-92. After long judicial proceedings, the Lottery moved to Honduras, leading Congress, in 1895, to add "foreign" to the type of commerce in which lottery ticket trafficking was illegal. See Edge Broad., 509 U.S. at 422. The Louisiana Lottery's unsavory character, its ubiquity, and its resistance to attempts to kill it earned it the nickname "Serpent" and condemnation as "this hydra-headed monster, which is demoralizing the young, the poor, and the needy throughout the country, as no institution in America has ever done." G. Robert Blakey & Harold A. Kurland, The Development of the Federal Law of Gambling, 63 CORNELL L. REV. 923, 937-39 (1978) (quoting Rep. Moore); see also O'BRIEN, supra note 3, at 106-08 (tracing the Louisiana Lottery to its ultimate demise in Honduras in 1907).
131. Edge Broad., 509 U.S. at 422.
132. 188 U.S. 321 (1903).
133. See id. at 323. In fact, it appears the tickets in dispute were printed in the United States. See id. at 364 (Fuller, J., dissenting).
134. See Edge Broad., 509 U.S. at 422.
135. 96 U.S. 1 (1877).
136. Lottery Case, 188 U.S. at 350 (quoting Pensacola Tel., 96 U.S. at 9).
137. Id. at 351 (quoting Pensacola Tel., 96 U.S. at 9).
138. 389 F.2d 895 (5th Cir. 1968).
139. See id. at 896.
140. Id. at 897; see also Rory K. Little, Myths and Principles of Federalisation, 46 HASTINGS L.J. 1029, 1062 n.154 (1995) (citing the Lottery Case, 188 U.S. 321, 357-58 (1903), for the proposition that "the Supreme Court long ago rejected Tenth Amendment arguments as a bar to assertion of federal criminal jurisdiction").
141. Id. at 897; see also Rory K. Little, Myths and Principles of Federalisation, 46 HASTINGS L.J. 1029, 1062 n.154 (1995) (citing the Lottery Case, 188 U.S. 321, 357-58 (1903), for the proposition that "the Supreme Court long ago rejected Tenth Amendment arguments as a bar to assertion of federal criminal jurisdiction").
142. Id. at 897; see also Rory K. Little, Myths and Principles of Federalisation, 46 HASTINGS L.J. 1029, 1062 n.154 (1995) (citing the Lottery Case, 188 U.S. 321, 357-58 (1903), for the proposition that "the Supreme Court long ago rejected Tenth Amendment arguments as a bar to assertion of federal criminal jurisdiction").
143. See Martin, 389 F.2d at 899-900; see also United States v. McDonough, 835 F.2d 1103 (5th Cir. 1988) (finding transmissions of bets from Texas to Massachusetts to be unlawful, regardless of whether they violated Massachusetts law); Cohen v. United States, 378 F.2d 751 (9th Cir. 1967) (finding that transmissions from Las Vegas to California were illegal).
144. 54 F.3d 639 (10th Cir. 1995).
145. Id. at 641.
146. See id. at 641-42.
147. Id. at 644.
148. 385 U.S. 263 (1966).
149. Id. at 268. The Court specifically noted legislative history offering the Irish Sweepstakes as an example of a lawful, offshore gambling operation that nonetheless could trigger liability. Id. at 268 n.5. Fabrizio was indicted for purchasing tickets to the 1964 New Hampshire Sweepstakes, which was the first legal lottery in the United States. See O'BRIEN, supra note 3, at 164.
150. Fabrizio had allegedly violated the Interstate Transportation of Wagering Paraphenalia Act ("ITWPA"), 18 U.S.C. § 1053 (1994), when he traveled to New Hampshire to purchase - on behalf of others - 75 tickets to the New Hampshire Sweepstakes and returned to Elmira, New York with receipts acknowledging the purchases. See Fabrizio, 385 U.S. at 271, 274 n.3.
151. See Fabrizio, 385 U.S. at 269.
152. The Internet already has been recognized as an instrumentality of commerce for the purposes of criminal law. See United States v. Kammersell, 7 F. Supp. 2d 1196, 1200 (D. Utah 1998).
153. Nor is it persuasive to make the Internet-gambling specific argument that the lawful reach of federal antigambling statutes cannot govern communications that encompass one jurisdiction where gambling is legal. It does not appear that such a defense was asserted even in United States v. Truesdale, 152 F.3d 443 (5th Cir. 1998), where the defendants otherwise obtained reversal of their convictions for operating a bookmaking operation in the Dominican Republic, Jamaica, and Dallas, Texas. Truesdale is interesting because the evidence clearly showed substantial use of toll-free telephone numbers to provide betting information and accept bets. See id. at 444. It also showed that the head of the gambling operation lived in Dallas, but monitored his Caribbean operations through various means, including obtaining betting information via computer. See id. at 445. For whatever reason, however, the prosecution did not rely on 18 U.S.C. § 1084 as the foundation for a substantive charge. Instead, the defendants were indicted for conducting an illegal gambling business in violation of 18 U.S.C. § 1955. This statute requires proof that the operation violates the law of the state in which it is conducted. See Truesdale, 152 F.3d at 447. The government's case, however, contained no direct proof that any bets were accepted in Texas. See id. at 447. The Fifth Circuit ruled that it was "irrational to conclude beyond a reasonable doubt that after having gone through the effort of fully equipping, staffing, and widely advertising the Caribbean offices, the appellant nevertheless illegally accepted bets" in Texas. Id. at 448. Without proof of this predicate offense, all of the remaining convictions were also reversed.
154. See infra note 229 and accompanying text.
155. United States Attorney, Southern District of New York, Press Release (visited Mar. 10, 1998) 〈http://www.rgtonline.com/newpage/artlisting.cfm/2092〉; see Sealed Complaint ¶ 8, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sdbg.com"); Sealed Complaint ¶ 8, United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com"); Sealed Complaint ¶ 8, United States v. J. Cohen, No. 98-m-00465 (S.D.N.Y. Mar. 2, 1998) ("www.wsex.com"); Sealed Complaint ¶ 8, United States v. Hunter, No. 98-m-00464 (S.D.N.Y. Mar. 2, 1998) ("www.galaxysports.com"); Sealed Complaint ¶ 8, United States v. Rogers, No. 98-m-00466 (S.D.N.Y. Mar. 2, 1998) ("www.winnersway.com"); Sealed Complaint ¶ 8, United States v. Ross, No. 98-m-00467 (S.D.N.Y. Mar. 2, 1998) ("www.islandcasino.com").
156. United States Attorney, Southern District of New York, Press Release (visited Mar. 10, 1998) 〈http://www.rgtonline.com/newpage/artlisting.cfm/2092〉; see Sealed Complaint ¶ 8, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sdbg.com"); Sealed Complaint ¶ 8, United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com"); Sealed Complaint ¶ 8, United States v. J. Cohen, No. 98-m-00465 (S.D.N.Y. Mar. 2, 1998) ("www.wsex.com"); Sealed Complaint ¶ 8, United States v. Hunter, No. 98-m-00464 (S.D.N.Y. Mar. 2, 1998) ("www.galaxysports.com"); Sealed Complaint ¶ 8, United States v. Rogers, No. 98-m-00466 (S.D.N.Y. Mar. 2, 1998) ("www.winnersway.com"); Sealed Complaint ¶ 8, United States v. Ross, No. 98-m-00467 (S.D.N.Y. Mar. 2, 1998) ("www.islandcasino.com").
157. United States Attorney, Southern District of New York, Press Release (visited Mar. 10, 1998) 〈http://www.rgtonline.com/newpage/artlisting.cfm/2092〉; see Sealed Complaint ¶ 8, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sdbg.com"); Sealed Complaint ¶ 8, United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com"); Sealed Complaint ¶ 8, United States v. J. Cohen, No. 98-m-00465 (S.D.N.Y. Mar. 2, 1998) ("www.wsex.com"); Sealed Complaint ¶ 8, United States v. Hunter, No. 98-m-00464 (S.D.N.Y. Mar. 2, 1998) ("www.galaxysports.com"); Sealed Complaint ¶ 8, United States v. Rogers, No. 98-m-00466 (S.D.N.Y. Mar. 2, 1998) ("www.winnersway.com"); Sealed Complaint ¶ 8, United States v. Ross, No. 98-m-00467 (S.D.N.Y. Mar. 2, 1998) ("www.islandcasino.com").
158. United States Attorney, Southern District of New York, Press Release (visited Mar. 10, 1998) 〈http://www.rgtonline.com/newpage/artlisting.cfm/2092〉; see Sealed Complaint ¶ 8, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sdbg.com"); Sealed Complaint ¶ 8, United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com"); Sealed Complaint ¶ 8, United States v. J. Cohen, No. 98-m-00465 (S.D.N.Y. Mar. 2, 1998) ("www.wsex.com"); Sealed Complaint ¶ 8, United States v. Hunter, No. 98-m-00464 (S.D.N.Y. Mar. 2, 1998) ("www.galaxysports.com"); Sealed Complaint ¶ 8, United States v. Rogers, No. 98-m-00466 (S.D.N.Y. Mar. 2, 1998) ("www.winnersway.com"); Sealed Complaint ¶ 8, United States v. Ross, No. 98-m-00467 (S.D.N.Y. Mar. 2, 1998) ("www.islandcasino.com").
159. United States Attorney, Southern District of New York, Press Release (visited Mar. 10, 1998) 〈http://www.rgtonline.com/newpage/artlisting.cfm/2092〉; see Sealed Complaint ¶ 8, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sdbg.com"); Sealed Complaint ¶ 8, United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com"); Sealed Complaint ¶ 8, United States v. J. Cohen, No. 98-m-00465 (S.D.N.Y. Mar. 2, 1998) ("www.wsex.com"); Sealed Complaint ¶ 8, United States v. Hunter, No. 98-m-00464 (S.D.N.Y. Mar. 2, 1998) ("www.galaxysports.com"); Sealed Complaint ¶ 8, United States v. Rogers, No. 98-m-00466 (S.D.N.Y. Mar. 2, 1998) ("www.winnersway.com"); Sealed Complaint ¶ 8, United States v. Ross, No. 98-m-00467 (S.D.N.Y. Mar. 2, 1998) ("www.islandcasino.com").
160. United States Attorney, Southern District of New York, Press Release (visited Mar. 10, 1998) 〈http://www.rgtonline.com/newpage/artlisting.cfm/2092〉; see Sealed Complaint ¶ 8, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sdbg.com"); Sealed Complaint ¶ 8, United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com"); Sealed Complaint ¶ 8, United States v. J. Cohen, No. 98-m-00465 (S.D.N.Y. Mar. 2, 1998) ("www.wsex.com"); Sealed Complaint ¶ 8, United States v. Hunter, No. 98-m-00464 (S.D.N.Y. Mar. 2, 1998) ("www.galaxysports.com"); Sealed Complaint ¶ 8, United States v. Rogers, No. 98-m-00466 (S.D.N.Y. Mar. 2, 1998) ("www.winnersway.com"); Sealed Complaint ¶ 8, United States v. Ross, No. 98-m-00467 (S.D.N.Y. Mar. 2, 1998) ("www.islandcasino.com").
161. United States Attorney, Southern District of New York, Press Release (visited Mar. 10, 1998) 〈http://www.rgtonline.com/newpage/artlisting.cfm/2092〉; see Sealed Complaint ¶ 8, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sdbg.com"); Sealed Complaint ¶ 8, United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com"); Sealed Complaint ¶ 8, United States v. J. Cohen, No. 98-m-00465 (S.D.N.Y. Mar. 2, 1998) ("www.wsex.com"); Sealed Complaint ¶ 8, United States v. Hunter, No. 98-m-00464 (S.D.N.Y. Mar. 2, 1998) ("www.galaxysports.com"); Sealed Complaint ¶ 8, United States v. Rogers, No. 98-m-00466 (S.D.N.Y. Mar. 2, 1998) ("www.winnersway.com"); Sealed Complaint ¶ 8, United States v. Ross, No. 98-m-00467 (S.D.N.Y. Mar. 2, 1998) ("www.islandcasino.com").
162. For example, an advertisement for SDB Global appeared in College and Pro Football Newsweekly and Pro Football Weekly stating, "Bet any sport . . . Anytime . . . Anywhere" and offering "'[m]embers only' internet access for up-to-the-minute scores/time changes." Sealed Complaint ¶ 29, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sdbg. com"). An advertisement in Pro Football Weekly for another Web site praised football betting online as a "good use for the Internet." Sealed Complaint 124, United States v. J. Cohen, No. 98-m-00465 (S.D.N.Y. Mar. 2, 1998) ("www.wsex.com"). An advertisement in Continental Airlines's in-flight magazine announced, "[s]portswagering [is] now available on the Internet . . . . Winner's Way gives you wagering freedom at your fingertips - and it doesn't get any safer, easier or more secure." Sealed Complaint ¶ 23, United States v. Rogers, No. 98-m-00466 (S.D.N.Y. Mar. 2, 1998) ("www.winnersway.com").
163. For example, an advertisement for SDB Global appeared in College and Pro Football Newsweekly and Pro Football Weekly stating, "Bet any sport . . . Anytime . . . Anywhere" and offering "'[m]embers only' internet access for up-to-the-minute scores/time changes." Sealed Complaint ¶ 29, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sdbg. com"). An advertisement in Pro Football Weekly for another Web site praised football betting online as a "good use for the Internet." Sealed Complaint 124, United States v. J. Cohen, No. 98-m-00465 (S.D.N.Y. Mar. 2, 1998) ("www.wsex.com"). An advertisement in Continental Airlines's in-flight magazine announced, "[s]portswagering [is] now available on the Internet . . . . Winner's Way gives you wagering freedom at your fingertips - and it doesn't get any safer, easier or more secure." Sealed Complaint ¶ 23, United States v. Rogers, No. 98-m-00466 (S.D.N.Y. Mar. 2, 1998) ("www.winnersway.com").
164. For example, an advertisement for SDB Global appeared in College and Pro Football Newsweekly and Pro Football Weekly stating, "Bet any sport . . . Anytime . . . Anywhere" and offering "'[m]embers only' internet access for up-to-the-minute scores/time changes." Sealed Complaint ¶ 29, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sdbg. com"). An advertisement in Pro Football Weekly for another Web site praised football betting online as a "good use for the Internet." Sealed Complaint 124, United States v. J. Cohen, No. 98-m-00465 (S.D.N.Y. Mar. 2, 1998) ("www.wsex.com"). An advertisement in Continental Airlines's in-flight magazine announced, "[s]portswagering [is] now available on the Internet . . . . Winner's Way gives you wagering freedom at your fingertips - and it doesn't get any safer, easier or more secure." Sealed Complaint ¶ 23, United States v. Rogers, No. 98-m-00466 (S.D.N.Y. Mar. 2, 1998) ("www.winnersway.com").
165. See Sealed Complaint ¶¶ 9, 23, United States v. Budin, No. 98-m-00463 (S.D.RY. Mar. 2, 1998) ("www.sdbg.com") (alleging that promotional literature was sent from the defendant's New York office); Sealed Complaint ¶ 22(d), United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com") (stating that the defendant's Colorado office was involved in marketing); Sealed Complaint ¶ 16, United States v. Rogers, No. 98-m-00466 (S.D.N.Y. Mar. 2, 1998) ("www.winnersway.com") (alleging that the defendant maintained marketing offices in the U.S., including two offices in Las Vegas); Sealed Complaint ¶¶ 8, 9, 12, 13, United States v. Stofan, No. 98-m-00644 (S.D.N.Y. Mar. 2, 1998) ("199.95.251.71/gsn/") (stating that an informational brochure was sent from the defendant's New Jersey office, where calls to a toll-free telephone number were answered). Where the servers were located is not clear from the complaints. See, e.g.. Sealed Complaint ¶ 31, United States v. Hunter, No. 98-m-00464 (S.D.N.Y. Mar. 2,1998) ("www.galaxysports.com") (reporting that the defendant's Web site was registered to a company with a Dallas address). If proven, these contacts make even less persuasive any personal jurisdiction or due process arguments that might be raised. See infra notes 128-137 and accompanying text.
166. See Sealed Complaint ¶¶ 9, 23, United States v. Budin, No. 98-m-00463 (S.D.RY. Mar. 2, 1998) ("www.sdbg.com") (alleging that promotional literature was sent from the defendant's New York office); Sealed Complaint ¶ 22(d), United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com") (stating that the defendant's Colorado office was involved in marketing); Sealed Complaint ¶ 16, United States v. Rogers, No. 98-m-00466 (S.D.N.Y. Mar. 2, 1998) ("www.winnersway.com") (alleging that the defendant maintained marketing offices in the U.S., including two offices in Las Vegas); Sealed Complaint ¶¶ 8, 9, 12, 13, United States v. Stofan, No. 98-m-00644 (S.D.N.Y. Mar. 2, 1998) ("199.95.251.71/gsn/") (stating that an informational brochure was sent from the defendant's New Jersey office, where calls to a toll-free telephone number were answered). Where the servers were located is not clear from the complaints. See, e.g.. Sealed Complaint ¶ 31, United States v. Hunter, No. 98-m-00464 (S.D.N.Y. Mar. 2,1998) ("www.galaxysports.com") (reporting that the defendant's Web site was registered to a company with a Dallas address). If proven, these contacts make even less persuasive any personal jurisdiction or due process arguments that might be raised. See infra notes 128-137 and accompanying text.
167. See Sealed Complaint ¶¶ 9, 23, United States v. Budin, No. 98-m-00463 (S.D.RY. Mar. 2, 1998) ("www.sdbg.com") (alleging that promotional literature was sent from the defendant's New York office); Sealed Complaint ¶ 22(d), United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com") (stating that the defendant's Colorado office was involved in marketing); Sealed Complaint ¶ 16, United States v. Rogers, No. 98-m-00466 (S.D.N.Y. Mar. 2, 1998) ("www.winnersway.com") (alleging that the defendant maintained marketing offices in the U.S., including two offices in Las Vegas); Sealed Complaint ¶¶ 8, 9, 12, 13, United States v. Stofan, No. 98-m-00644 (S.D.N.Y. Mar. 2, 1998) ("199.95.251.71/gsn/") (stating that an informational brochure was sent from the defendant's New Jersey office, where calls to a toll-free telephone number were answered). Where the servers were located is not clear from the complaints. See, e.g.. Sealed Complaint ¶ 31, United States v. Hunter, No. 98-m-00464 (S.D.N.Y. Mar. 2,1998) ("www.galaxysports.com") (reporting that the defendant's Web site was registered to a company with a Dallas address). If proven, these contacts make even less persuasive any personal jurisdiction or due process arguments that might be raised. See infra notes 128-137 and accompanying text.
168. See Sealed Complaint ¶¶ 9, 23, United States v. Budin, No. 98-m-00463 (S.D.RY. Mar. 2, 1998) ("www.sdbg.com") (alleging that promotional literature was sent from the defendant's New York office); Sealed Complaint ¶ 22(d), United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com") (stating that the defendant's Colorado office was involved in marketing); Sealed Complaint ¶ 16, United States v. Rogers, No. 98-m-00466 (S.D.N.Y. Mar. 2, 1998) ("www.winnersway.com") (alleging that the defendant maintained marketing offices in the U.S., including two offices in Las Vegas); Sealed Complaint ¶¶ 8, 9, 12, 13, United States v. Stofan, No. 98-m-00644 (S.D.N.Y. Mar. 2, 1998) ("199.95.251.71/gsn/") (stating that an informational brochure was sent from the defendant's New Jersey office, where calls to a toll-free telephone number were answered). Where the servers were located is not clear from the complaints. See, e.g.. Sealed Complaint ¶ 31, United States v. Hunter, No. 98-m-00464 (S.D.N.Y. Mar. 2,1998) ("www.galaxysports.com") (reporting that the defendant's Web site was registered to a company with a Dallas address). If proven, these contacts make even less persuasive any personal jurisdiction or due process arguments that might be raised. See infra notes 128-137 and accompanying text.
169. See Sealed Complaint ¶¶ 9, 23, United States v. Budin, No. 98-m-00463 (S.D.RY. Mar. 2, 1998) ("www.sdbg.com") (alleging that promotional literature was sent from the defendant's New York office); Sealed Complaint ¶ 22(d), United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com") (stating that the defendant's Colorado office was involved in marketing); Sealed Complaint ¶ 16, United States v. Rogers, No. 98-m-00466 (S.D.N.Y. Mar. 2, 1998) ("www.winnersway.com") (alleging that the defendant maintained marketing offices in the U.S., including two offices in Las Vegas); Sealed Complaint ¶¶ 8, 9, 12, 13, United States v. Stofan, No. 98-m-00644 (S.D.N.Y. Mar. 2, 1998) ("199.95.251.71/gsn/") (stating that an informational brochure was sent from the defendant's New Jersey office, where calls to a toll-free telephone number were answered). Where the servers were located is not clear from the complaints. See, e.g.. Sealed Complaint ¶ 31, United States v. Hunter, No. 98-m-00464 (S.D.N.Y. Mar. 2,1998) ("www.galaxysports.com") (reporting that the defendant's Web site was registered to a company with a Dallas address). If proven, these contacts make even less persuasive any personal jurisdiction or due process arguments that might be raised. See infra notes 128-137 and accompanying text.
170. See Sealed Complaint ¶¶ 9, 23, United States v. Budin, No. 98-m-00463 (S.D.RY. Mar. 2, 1998) ("www.sdbg.com") (alleging that promotional literature was sent from the defendant's New York office); Sealed Complaint ¶ 22(d), United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com") (stating that the defendant's Colorado office was involved in marketing); Sealed Complaint ¶ 16, United States v. Rogers, No. 98-m-00466 (S.D.N.Y. Mar. 2, 1998) ("www.winnersway.com") (alleging that the defendant maintained marketing offices in the U.S., including two offices in Las Vegas); Sealed Complaint ¶¶ 8, 9, 12, 13, United States v. Stofan, No. 98-m-00644 (S.D.N.Y. Mar. 2, 1998) ("199.95.251.71/gsn/") (stating that an informational brochure was sent from the defendant's New Jersey office, where calls to a toll-free telephone number were answered). Where the servers were located is not clear from the complaints. See, e.g.. Sealed Complaint ¶ 31, United States v. Hunter, No. 98-m-00464 (S.D.N.Y. Mar. 2,1998) ("www.galaxysports.com") (reporting that the defendant's Web site was registered to a company with a Dallas address). If proven, these contacts make even less persuasive any personal jurisdiction or due process arguments that might be raised. See infra notes 128-137 and accompanying text.
171. See Sealed Complaint ¶ 7(b), United States v. Stofan, No. 98-m-00644 (S.D.N.Y. Mar. 20 1998) ("199.95.251.71/gsn/").
172. See id. ¶ 8.
173. To open accounts on the sports betting sites named in the Southern District of New York complaints, FBI agents transferred funds by wire to banks in the home countries of the gambling sites. See, e.g., Sealed Complaint 111, United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com") ("[T]he U[nder]C[over] sent $500 by Western Union to meet the minimum deposit requirement of Real Casino. The Western Union transfer was made out to "Informacion Real."); id. ¶ 24 ("[T]he originating bank of the wire transfer was Banco Continental in Panama."); Sealed Complaint ¶ 12, United States v. Hunter, No. 98-m-00454 (S.D.N.Y. Mar. 2, 1998) ("www.galaxysports.com") ("[T]he U[nder]C[over] opened an account with Galaxy Sports by sending $600 by Western Union from New York, New York."); id. ¶ 18 ("The check [for winnings] was written on an account of 'Bank of Nevis Ltd.'").
174. To open accounts on the sports betting sites named in the Southern District of New York complaints, FBI agents transferred funds by wire to banks in the home countries of the gambling sites. See, e.g., Sealed Complaint 111, United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com") ("[T]he U[nder]C[over] sent $500 by Western Union to meet the minimum deposit requirement of Real Casino. The Western Union transfer was made out to "Informacion Real."); id. ¶ 24 ("[T]he originating bank of the wire transfer was Banco Continental in Panama."); Sealed Complaint ¶ 12, United States v. Hunter, No. 98-m-00454 (S.D.N.Y. Mar. 2, 1998) ("www.galaxysports.com") ("[T]he U[nder]C[over] opened an account with Galaxy Sports by sending $600 by Western Union from New York, New York."); id. ¶ 18 ("The check [for winnings] was written on an account of 'Bank of Nevis Ltd.'").
175. To open accounts on the sports betting sites named in the Southern District of New York complaints, FBI agents transferred funds by wire to banks in the home countries of the gambling sites. See, e.g., Sealed Complaint 111, United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com") ("[T]he U[nder]C[over] sent $500 by Western Union to meet the minimum deposit requirement of Real Casino. The Western Union transfer was made out to "Informacion Real."); id. ¶ 24 ("[T]he originating bank of the wire transfer was Banco Continental in Panama."); Sealed Complaint ¶ 12, United States v. Hunter, No. 98-m-00454 (S.D.N.Y. Mar. 2, 1998) ("www.galaxysports.com") ("[T]he U[nder]C[over] opened an account with Galaxy Sports by sending $600 by Western Union from New York, New York."); id. ¶ 18 ("The check [for winnings] was written on an account of 'Bank of Nevis Ltd.'").
176. To open accounts on the sports betting sites named in the Southern District of New York complaints, FBI agents transferred funds by wire to banks in the home countries of the gambling sites. See, e.g., Sealed Complaint 111, United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.realcasino.com") ("[T]he U[nder]C[over] sent $500 by Western Union to meet the minimum deposit requirement of Real Casino. The Western Union transfer was made out to "Informacion Real."); id. ¶ 24 ("[T]he originating bank of the wire transfer was Banco Continental in Panama."); Sealed Complaint ¶ 12, United States v. Hunter, No. 98-m-00454 (S.D.N.Y. Mar. 2, 1998) ("www.galaxysports.com") ("[T]he U[nder]C[over] opened an account with Galaxy Sports by sending $600 by Western Union from New York, New York."); id. ¶ 18 ("The check [for winnings] was written on an account of 'Bank of Nevis Ltd.'").
177. See Sealed Complaint ¶ 13, United States v. Stofan, No. 98-m-00644 (S.D.N.Y. Mar. 20 1998) ("199.95.251.71/gsn/").
178. See Sealed Complaint ¶¶ 16, 23, United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2,1998) ("www.realcasino.com").
179. United States Attorney, Southern District of New York, Press Release (visited Apr. 16, 1998) 〈http://www.rgtonline.com/newspage/artlisting.cfm?textID=2153〉.
180. See Sealed Complaint, United States v. Lnu, No. 98-m-00675 (S.D.N.Y. Mar. 24, 1998) ("www.wsex.com"); Sealed Complaint, United States v. Moore, No. 98-m-00677 (S.D.N.Y. Mar. 24, 1998) ("www.galaxysports.com"); Sealed Complaint, United States v. Peters, No. 98-m-00643 (S.D.N.Y. Mar. 20, 1998) ("www.ghconline.com"); Sealed Complaint, United States v. Stofan, No. 98-m-00644 (S.D.N.Y. Mar. 20 1998) ("199.95.251.71/gsn/"); Sealed Complaint, United States v. Scott, No. 98-m-00642 (S.D.N.Y. Mar. 20, 1998) ("www.wwrs.com").
181. See Sealed Complaint, United States v. Lnu, No. 98-m-00675 (S.D.N.Y. Mar. 24, 1998) ("www.wsex.com"); Sealed Complaint, United States v. Moore, No. 98-m-00677 (S.D.N.Y. Mar. 24, 1998) ("www.galaxysports.com"); Sealed Complaint, United States v. Peters, No. 98-m-00643 (S.D.N.Y. Mar. 20, 1998) ("www.ghconline.com"); Sealed Complaint, United States v. Stofan, No. 98-m-00644 (S.D.N.Y. Mar. 20 1998) ("199.95.251.71/gsn/"); Sealed Complaint, United States v. Scott, No. 98-m-00642 (S.D.N.Y. Mar. 20, 1998) ("www.wwrs.com").
182. See Sealed Complaint, United States v. Lnu, No. 98-m-00675 (S.D.N.Y. Mar. 24, 1998) ("www.wsex.com"); Sealed Complaint, United States v. Moore, No. 98-m-00677 (S.D.N.Y. Mar. 24, 1998) ("www.galaxysports.com"); Sealed Complaint, United States v. Peters, No. 98-m-00643 (S.D.N.Y. Mar. 20, 1998) ("www.ghconline.com"); Sealed Complaint, United States v. Stofan, No. 98-m-00644 (S.D.N.Y. Mar. 20 1998) ("199.95.251.71/gsn/"); Sealed Complaint, United States v. Scott, No. 98-m-00642 (S.D.N.Y. Mar. 20, 1998) ("www.wwrs.com").
183. See Sealed Complaint, United States v. Lnu, No. 98-m-00675 (S.D.N.Y. Mar. 24, 1998) ("www.wsex.com"); Sealed Complaint, United States v. Moore, No. 98-m-00677 (S.D.N.Y. Mar. 24, 1998) ("www.galaxysports.com"); Sealed Complaint, United States v. Peters, No. 98-m-00643 (S.D.N.Y. Mar. 20, 1998) ("www.ghconline.com"); Sealed Complaint, United States v. Stofan, No. 98-m-00644 (S.D.N.Y. Mar. 20 1998) ("199.95.251.71/gsn/"); Sealed Complaint, United States v. Scott, No. 98-m-00642 (S.D.N.Y. Mar. 20, 1998) ("www.wwrs.com").
184. See Sealed Complaint, United States v. Lnu, No. 98-m-00675 (S.D.N.Y. Mar. 24, 1998) ("www.wsex.com"); Sealed Complaint, United States v. Moore, No. 98-m-00677 (S.D.N.Y. Mar. 24, 1998) ("www.galaxysports.com"); Sealed Complaint, United States v. Peters, No. 98-m-00643 (S.D.N.Y. Mar. 20, 1998) ("www.ghconline.com"); Sealed Complaint, United States v. Stofan, No. 98-m-00644 (S.D.N.Y. Mar. 20 1998) ("199.95.251.71/gsn/"); Sealed Complaint, United States v. Scott, No. 98-m-00642 (S.D.N.Y. Mar. 20, 1998) ("www.wwrs.com").
185. See Chauncey Hollingsworth, Loaded Dice? Odds Are Regulators Can't Stem Tide of Internet Gambling, CHI. TRIB., Dec. 4, 1998, at 1. One of those arrested, Jay Cohen, unsuccessfully sought to dismiss the indictment based on a four-step argument. First, he claimed that no "betting" took place in the United States because all funds used to bet came out of a customer's pre-established account in Antigua. See Transcript of Oral Argument at 5, United States v. J. Cohen, No. 98 Cr. 434 (S.D.N.Y. Feb. 25, 1999). Second, he argued, because the money was already in Antigua, the only thing being transmitted to Antigua via the Internet is "either the placing of a bet or the transmission of information" assisting in the placing of bets. Id. at 7. Third, he argued that the "placing of bets" is not illegal in New York, from which the undercover agents made their online bets. Id. at 6. As support for this proposition, he cited a New York case that criminalizes every aspect of gambling except the placing of the bets itself. See People v. Giordano, 663 N.E.2d 588, 591 (N.Y. 1995) ("Under the statutory scheme a mere 'player' or bettor is not criminally liable but one who, in some capacity other than as a player, participates in any gambling enterprise or activity is guilty of a crime."). Finally, he maintained that, because "placing a bet" is legal in New York, he could not be prosecuted for violating § 1084 because of the exception in § 1084(b) that permits "the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal." See Transcript of Oral Argument, supra, at 6-8. Cohen's argument depends, at its core, on the underlying premise that by accessing remote Web sites, U.S. citizens make "virtual voyages" from their home states to transact business solely in the jurisdiction where the Web site server is located. As noted, this theory already has been rejected in other contexts. See, e.g., Playboy Enters, v. Chuckleberry Publ'g, 939 F. Supp. 1032, 1039 (S.D.N.Y. 1996) (rejecting the premise that, by accessing a Web server located in Italy, the U.S. user "transport[s] himself to Italy"). Moreover, Cohen's argument misses the point. Regardless of whether the fractional act of "placing a bet" is legal in New York for the person placing the bet, which it does not appear to be, see N.Y. GEN. OBLIG. LAW § 5-401 (McKinney 1989) (declaring "all wagers, bets or stakes . . . unlawful"), the "betting" transaction clearly is illegal, as it necessarily involves more people than just the bettor, see Giordano, 663 N.E.2d at 591. Because § 1084(b) exempts only the transmission of betting information between states where the complete transaction of betting on sports events or contests is legal, and because such betting is not legal in New York, "information assisting in the placing of bets or wagers" that emanates from New York does not qualify for the exception under § 1084(b). On February 5, 1999, Chief Judge Thomas P. Griesa denied Cohen's motion to dismiss. See Transcript of Oral Argument, supra, at 57.
186. See Chauncey Hollingsworth, Loaded Dice? Odds Are Regulators Can't Stem Tide of Internet Gambling, CHI. TRIB., Dec. 4, 1998, at 1. One of those arrested, Jay Cohen, unsuccessfully sought to dismiss the indictment based on a four-step argument. First, he claimed that no "betting" took place in the United States because all funds used to bet came out of a customer's pre-established account in Antigua. See Transcript of Oral Argument at 5, United States v. J. Cohen, No. 98 Cr. 434 (S.D.N.Y. Feb. 25, 1999). Second, he argued, because the money was already in Antigua, the only thing being transmitted to Antigua via the Internet is "either the placing of a bet or the transmission of information" assisting in the placing of bets. Id. at 7. Third, he argued that the "placing of bets" is not illegal in New York, from which the undercover agents made their online bets. Id. at 6. As support for this proposition, he cited a New York case that criminalizes every aspect of gambling except the placing of the bets itself. See People v. Giordano, 663 N.E.2d 588, 591 (N.Y. 1995) ("Under the statutory scheme a mere 'player' or bettor is not criminally liable but one who, in some capacity other than as a player, participates in any gambling enterprise or activity is guilty of a crime."). Finally, he maintained that, because "placing a bet" is legal in New York, he could not be prosecuted for violating § 1084 because of the exception in § 1084(b) that permits "the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal." See Transcript of Oral Argument, supra, at 6-8. Cohen's argument depends, at its core, on the underlying premise that by accessing remote Web sites, U.S. citizens make "virtual voyages" from their home states to transact business solely in the jurisdiction where the Web site server is located. As noted, this theory already has been rejected in other contexts. See, e.g., Playboy Enters, v. Chuckleberry Publ'g, 939 F. Supp. 1032, 1039 (S.D.N.Y. 1996) (rejecting the premise that, by accessing a Web server located in Italy, the U.S. user "transport[s] himself to Italy"). Moreover, Cohen's argument misses the point. Regardless of whether the fractional act of "placing a bet" is legal in New York for the person placing the bet, which it does not appear to be, see N.Y. GEN. OBLIG. LAW § 5-401 (McKinney 1989) (declaring "all wagers, bets or stakes . . . unlawful"), the "betting" transaction clearly is illegal, as it necessarily involves more people than just the bettor, see Giordano, 663 N.E.2d at 591. Because § 1084(b) exempts only the transmission of betting information between states where the complete transaction of betting on sports events or contests is legal, and because such betting is not legal in New York, "information assisting in the placing of bets or wagers" that emanates from New York does not qualify for the exception under § 1084(b). On February 5, 1999, Chief Judge Thomas P. Griesa denied Cohen's motion to dismiss. See Transcript of Oral Argument, supra, at 57.
187. See Chauncey Hollingsworth, Loaded Dice? Odds Are Regulators Can't Stem Tide of Internet Gambling, CHI. TRIB., Dec. 4, 1998, at 1. One of those arrested, Jay Cohen, unsuccessfully sought to dismiss the indictment based on a four-step argument. First, he claimed that no "betting" took place in the United States because all funds used to bet came out of a customer's pre-established account in Antigua. See Transcript of Oral Argument at 5, United States v. J. Cohen, No. 98 Cr. 434 (S.D.N.Y. Feb. 25, 1999). Second, he argued, because the money was already in Antigua, the only thing being transmitted to Antigua via the Internet is "either the placing of a bet or the transmission of information" assisting in the placing of bets. Id. at 7. Third, he argued that the "placing of bets" is not illegal in New York, from which the undercover agents made their online bets. Id. at 6. As support for this proposition, he cited a New York case that criminalizes every aspect of gambling except the placing of the bets itself. See People v. Giordano, 663 N.E.2d 588, 591 (N.Y. 1995) ("Under the statutory scheme a mere 'player' or bettor is not criminally liable but one who, in some capacity other than as a player, participates in any gambling enterprise or activity is guilty of a crime."). Finally, he maintained that, because "placing a bet" is legal in New York, he could not be prosecuted for violating § 1084 because of the exception in § 1084(b) that permits "the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal." See Transcript of Oral Argument, supra, at 6-8. Cohen's argument depends, at its core, on the underlying premise that by accessing remote Web sites, U.S. citizens make "virtual voyages" from their home states to transact business solely in the jurisdiction where the Web site server is located. As noted, this theory already has been rejected in other contexts. See, e.g., Playboy Enters, v. Chuckleberry Publ'g, 939 F. Supp. 1032, 1039 (S.D.N.Y. 1996) (rejecting the premise that, by accessing a Web server located in Italy, the U.S. user "transport[s] himself to Italy"). Moreover, Cohen's argument misses the point. Regardless of whether the fractional act of "placing a bet" is legal in New York for the person placing the bet, which it does not appear to be, see N.Y. GEN. OBLIG. LAW § 5-401 (McKinney 1989) (declaring "all wagers, bets or stakes . . . unlawful"), the "betting" transaction clearly is illegal, as it necessarily involves more people than just the bettor, see Giordano, 663 N.E.2d at 591. Because § 1084(b) exempts only the transmission of betting information between states where the complete transaction of betting on sports events or contests is legal, and because such betting is not legal in New York, "information assisting in the placing of bets or wagers" that emanates from New York does not qualify for the exception under § 1084(b). On February 5, 1999, Chief Judge Thomas P. Griesa denied Cohen's motion to dismiss. See Transcript of Oral Argument, supra, at 57.
188. See Chauncey Hollingsworth, Loaded Dice? Odds Are Regulators Can't Stem Tide of Internet Gambling, CHI. TRIB., Dec. 4, 1998, at 1. One of those arrested, Jay Cohen, unsuccessfully sought to dismiss the indictment based on a four-step argument. First, he claimed that no "betting" took place in the United States because all funds used to bet came out of a customer's pre-established account in Antigua. See Transcript of Oral Argument at 5, United States v. J. Cohen, No. 98 Cr. 434 (S.D.N.Y. Feb. 25, 1999). Second, he argued, because the money was already in Antigua, the only thing being transmitted to Antigua via the Internet is "either the placing of a bet or the transmission of information" assisting in the placing of bets. Id. at 7. Third, he argued that the "placing of bets" is not illegal in New York, from which the undercover agents made their online bets. Id. at 6. As support for this proposition, he cited a New York case that criminalizes every aspect of gambling except the placing of the bets itself. See People v. Giordano, 663 N.E.2d 588, 591 (N.Y. 1995) ("Under the statutory scheme a mere 'player' or bettor is not criminally liable but one who, in some capacity other than as a player, participates in any gambling enterprise or activity is guilty of a crime."). Finally, he maintained that, because "placing a bet" is legal in New York, he could not be prosecuted for violating § 1084 because of the exception in § 1084(b) that permits "the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal." See Transcript of Oral Argument, supra, at 6-8. Cohen's argument depends, at its core, on the underlying premise that by accessing remote Web sites, U.S. citizens make "virtual voyages" from their home states to transact business solely in the jurisdiction where the Web site server is located. As noted, this theory already has been rejected in other contexts. See, e.g., Playboy Enters, v. Chuckleberry Publ'g, 939 F. Supp. 1032, 1039 (S.D.N.Y. 1996) (rejecting the premise that, by accessing a Web server located in Italy, the U.S. user "transport[s] himself to Italy"). Moreover, Cohen's argument misses the point. Regardless of whether the fractional act of "placing a bet" is legal in New York for the person placing the bet, which it does not appear to be, see N.Y. GEN. OBLIG. LAW § 5-401 (McKinney 1989) (declaring "all wagers, bets or stakes . . . unlawful"), the "betting" transaction clearly is illegal, as it necessarily involves more people than just the bettor, see Giordano, 663 N.E.2d at 591. Because § 1084(b) exempts only the transmission of betting information between states where the complete transaction of betting on sports events or contests is legal, and because such betting is not legal in New York, "information assisting in the placing of bets or wagers" that emanates from New York does not qualify for the exception under § 1084(b). On February 5, 1999, Chief Judge Thomas P. Griesa denied Cohen's motion to dismiss. See Transcript of Oral Argument, supra, at 57.
189. See Chauncey Hollingsworth, Loaded Dice? Odds Are Regulators Can't Stem Tide of Internet Gambling, CHI. TRIB., Dec. 4, 1998, at 1. One of those arrested, Jay Cohen, unsuccessfully sought to dismiss the indictment based on a four-step argument. First, he claimed that no "betting" took place in the United States because all funds used to bet came out of a customer's pre-established account in Antigua. See Transcript of Oral Argument at 5, United States v. J. Cohen, No. 98 Cr. 434 (S.D.N.Y. Feb. 25, 1999). Second, he argued, because the money was already in Antigua, the only thing being transmitted to Antigua via the Internet is "either the placing of a bet or the transmission of information" assisting in the placing of bets. Id. at 7. Third, he argued that the "placing of bets" is not illegal in New York, from which the undercover agents made their online bets. Id. at 6. As support for this proposition, he cited a New York case that criminalizes every aspect of gambling except the placing of the bets itself. See People v. Giordano, 663 N.E.2d 588, 591 (N.Y. 1995) ("Under the statutory scheme a mere 'player' or bettor is not criminally liable but one who, in some capacity other than as a player, participates in any gambling enterprise or activity is guilty of a crime."). Finally, he maintained that, because "placing a bet" is legal in New York, he could not be prosecuted for violating § 1084 because of the exception in § 1084(b) that permits "the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal." See Transcript of Oral Argument, supra, at 6-8. Cohen's argument depends, at its core, on the underlying premise that by accessing remote Web sites, U.S. citizens make "virtual voyages" from their home states to transact business solely in the jurisdiction where the Web site server is located. As noted, this theory already has been rejected in other contexts. See, e.g., Playboy Enters, v. Chuckleberry Publ'g, 939 F. Supp. 1032, 1039 (S.D.N.Y. 1996) (rejecting the premise that, by accessing a Web server located in Italy, the U.S. user "transport[s] himself to Italy"). Moreover, Cohen's argument misses the point. Regardless of whether the fractional act of "placing a bet" is legal in New York for the person placing the bet, which it does not appear to be, see N.Y. GEN. OBLIG. LAW § 5-401 (McKinney 1989) (declaring "all wagers, bets or stakes . . . unlawful"), the "betting" transaction clearly is illegal, as it necessarily involves more people than just the bettor, see Giordano, 663 N.E.2d at 591. Because § 1084(b) exempts only the transmission of betting information between states where the complete transaction of betting on sports events or contests is legal, and because such betting is not legal in New York, "information assisting in the placing of bets or wagers" that emanates from New York does not qualify for the exception under § 1084(b). On February 5, 1999, Chief Judge Thomas P. Griesa denied Cohen's motion to dismiss. See Transcript of Oral Argument, supra, at 57.
190. See Chauncey Hollingsworth, Loaded Dice? Odds Are Regulators Can't Stem Tide of Internet Gambling, CHI. TRIB., Dec. 4, 1998, at 1. One of those arrested, Jay Cohen, unsuccessfully sought to dismiss the indictment based on a four-step argument. First, he claimed that no "betting" took place in the United States because all funds used to bet came out of a customer's pre-established account in Antigua. See Transcript of Oral Argument at 5, United States v. J. Cohen, No. 98 Cr. 434 (S.D.N.Y. Feb. 25, 1999). Second, he argued, because the money was already in Antigua, the only thing being transmitted to Antigua via the Internet is "either the placing of a bet or the transmission of information" assisting in the placing of bets. Id. at 7. Third, he argued that the "placing of bets" is not illegal in New York, from which the undercover agents made their online bets. Id. at 6. As support for this proposition, he cited a New York case that criminalizes every aspect of gambling except the placing of the bets itself. See People v. Giordano, 663 N.E.2d 588, 591 (N.Y. 1995) ("Under the statutory scheme a mere 'player' or bettor is not criminally liable but one who, in some capacity other than as a player, participates in any gambling enterprise or activity is guilty of a crime."). Finally, he maintained that, because "placing a bet" is legal in New York, he could not be prosecuted for violating § 1084 because of the exception in § 1084(b) that permits "the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal." See Transcript of Oral Argument, supra, at 6-8. Cohen's argument depends, at its core, on the underlying premise that by accessing remote Web sites, U.S. citizens make "virtual voyages" from their home states to transact business solely in the jurisdiction where the Web site server is located. As noted, this theory already has been rejected in other contexts. See, e.g., Playboy Enters, v. Chuckleberry Publ'g, 939 F. Supp. 1032, 1039 (S.D.N.Y. 1996) (rejecting the premise that, by accessing a Web server located in Italy, the U.S. user "transport[s] himself to Italy"). Moreover, Cohen's argument misses the point. Regardless of whether the fractional act of "placing a bet" is legal in New York for the person placing the bet, which it does not appear to be, see N.Y. GEN. OBLIG. LAW § 5-401 (McKinney 1989) (declaring "all wagers, bets or stakes . . . unlawful"), the "betting" transaction clearly is illegal, as it necessarily involves more people than just the bettor, see Giordano, 663 N.E.2d at 591. Because § 1084(b) exempts only the transmission of betting information between states where the complete transaction of betting on sports events or contests is legal, and because such betting is not legal in New York, "information assisting in the placing of bets or wagers" that emanates from New York does not qualify for the exception under § 1084(b). On February 5, 1999, Chief Judge Thomas P. Griesa denied Cohen's motion to dismiss. See Transcript of Oral Argument, supra, at 57.
191. See Chauncey Hollingsworth, Loaded Dice? Odds Are Regulators Can't Stem Tide of Internet Gambling, CHI. TRIB., Dec. 4, 1998, at 1. One of those arrested, Jay Cohen, unsuccessfully sought to dismiss the indictment based on a four-step argument. First, he claimed that no "betting" took place in the United States because all funds used to bet came out of a customer's pre-established account in Antigua. See Transcript of Oral Argument at 5, United States v. J. Cohen, No. 98 Cr. 434 (S.D.N.Y. Feb. 25, 1999). Second, he argued, because the money was already in Antigua, the only thing being transmitted to Antigua via the Internet is "either the placing of a bet or the transmission of information" assisting in the placing of bets. Id. at 7. Third, he argued that the "placing of bets" is not illegal in New York, from which the undercover agents made their online bets. Id. at 6. As support for this proposition, he cited a New York case that criminalizes every aspect of gambling except the placing of the bets itself. See People v. Giordano, 663 N.E.2d 588, 591 (N.Y. 1995) ("Under the statutory scheme a mere 'player' or bettor is not criminally liable but one who, in some capacity other than as a player, participates in any gambling enterprise or activity is guilty of a crime."). Finally, he maintained that, because "placing a bet" is legal in New York, he could not be prosecuted for violating § 1084 because of the exception in § 1084(b) that permits "the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal." See Transcript of Oral Argument, supra, at 6-8. Cohen's argument depends, at its core, on the underlying premise that by accessing remote Web sites, U.S. citizens make "virtual voyages" from their home states to transact business solely in the jurisdiction where the Web site server is located. As noted, this theory already has been rejected in other contexts. See, e.g., Playboy Enters, v. Chuckleberry Publ'g, 939 F. Supp. 1032, 1039 (S.D.N.Y. 1996) (rejecting the premise that, by accessing a Web server located in Italy, the U.S. user "transport[s] himself to Italy"). Moreover, Cohen's argument misses the point. Regardless of whether the fractional act of "placing a bet" is legal in New York for the person placing the bet, which it does not appear to be, see N.Y. GEN. OBLIG. LAW § 5-401 (McKinney 1989) (declaring "all wagers, bets or stakes . . . unlawful"), the "betting" transaction clearly is illegal, as it necessarily involves more people than just the bettor, see Giordano, 663 N.E.2d at 591. Because § 1084(b) exempts only the transmission of betting information between states where the complete transaction of betting on sports events or contests is legal, and because such betting is not legal in New York, "information assisting in the placing of bets or wagers" that emanates from New York does not qualify for the exception under § 1084(b). On February 5, 1999, Chief Judge Thomas P. Griesa denied Cohen's motion to dismiss. See Transcript of Oral Argument, supra, at 57.
192. See Chauncey Hollingsworth, Loaded Dice? Odds Are Regulators Can't Stem Tide of Internet Gambling, CHI. TRIB., Dec. 4, 1998, at 1. One of those arrested, Jay Cohen, unsuccessfully sought to dismiss the indictment based on a four-step argument. First, he claimed that no "betting" took place in the United States because all funds used to bet came out of a customer's pre-established account in Antigua. See Transcript of Oral Argument at 5, United States v. J. Cohen, No. 98 Cr. 434 (S.D.N.Y. Feb. 25, 1999). Second, he argued, because the money was already in Antigua, the only thing being transmitted to Antigua via the Internet is "either the placing of a bet or the transmission of information" assisting in the placing of bets. Id. at 7. Third, he argued that the "placing of bets" is not illegal in New York, from which the undercover agents made their online bets. Id. at 6. As support for this proposition, he cited a New York case that criminalizes every aspect of gambling except the placing of the bets itself. See People v. Giordano, 663 N.E.2d 588, 591 (N.Y. 1995) ("Under the statutory scheme a mere 'player' or bettor is not criminally liable but one who, in some capacity other than as a player, participates in any gambling enterprise or activity is guilty of a crime."). Finally, he maintained that, because "placing a bet" is legal in New York, he could not be prosecuted for violating § 1084 because of the exception in § 1084(b) that permits "the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal." See Transcript of Oral Argument, supra, at 6-8. Cohen's argument depends, at its core, on the underlying premise that by accessing remote Web sites, U.S. citizens make "virtual voyages" from their home states to transact business solely in the jurisdiction where the Web site server is located. As noted, this theory already has been rejected in other contexts. See, e.g., Playboy Enters, v. Chuckleberry Publ'g, 939 F. Supp. 1032, 1039 (S.D.N.Y. 1996) (rejecting the premise that, by accessing a Web server located in Italy, the U.S. user "transport[s] himself to Italy"). Moreover, Cohen's argument misses the point. Regardless of whether the fractional act of "placing a bet" is legal in New York for the person placing the bet, which it does not appear to be, see N.Y. GEN. OBLIG. LAW § 5-401 (McKinney 1989) (declaring "all wagers, bets or stakes . . . unlawful"), the "betting" transaction clearly is illegal, as it necessarily involves more people than just the bettor, see Giordano, 663 N.E.2d at 591. Because § 1084(b) exempts only the transmission of betting information between states where the complete transaction of betting on sports events or contests is legal, and because such betting is not legal in New York, "information assisting in the placing of bets or wagers" that emanates from New York does not qualify for the exception under § 1084(b). On February 5, 1999, Chief Judge Thomas P. Griesa denied Cohen's motion to dismiss. See Transcript of Oral Argument, supra, at 57.
193. See supra notes 91-102 and accompanying text.
194. See Kyl Bill Hearing, supra note 5, at 3 (statement of Chairman Jon Kyl) ("Society has always prohibited most forms of gambling because it can have a devastating effect on people and families, and it leads to other crime and corruption if not strictly regulated.").
195. Gambling addiction also leads to absenteeism, Internet gambling at work, and a consequent loss of productivity among people who are potentially the most productive in the work force. See id. at 19 (statement of Ann Geer, Chair, National Coalition Against Gambling Expansion).
196. See, e.g., LA. REV. STAT. ANN. § 27:240 (West Supp. 1999).
197. See, e.g., N.J. STAT. ANN. § 5:12-79 (West 1996).
198. See, e.g., MICH. COMP. LAWS § 432.205(l)(4) (Supp. 1998); see also Kyl Bill Hearing, supra note 5, at 5 (statement of Sen. Bryan) ("[S]ince many of these sites operate offshore, it is beyond the reach of U.S. authorities. Such a scenario is ripe for consumer fraud. The greatest danger posed by Internet gambling is that there is no way to control it and there is no way to regulate it.").
199. See, e.g., MICH. COMP. LAWS § 432.205(l)(4) (Supp. 1998); see also Kyl Bill Hearing, supra note 5, at 5 (statement of Sen. Bryan) ("[S]ince many of these sites operate offshore, it is beyond the reach of U.S. authorities. Such a scenario is ripe for consumer fraud. The greatest danger posed by Internet gambling is that there is no way to control it and there is no way to regulate it.").
200. See, e.g., CAL. BUS. & PROF. CODE § 19,834A(f) (West Supp. 1999).
201. See 18 U.S.C.A. §§ 1304, 1307 (West Supp. 1998).
202. See, e.g., IOWA CODE ANN. § 99B.17 (West 1996).
203. See, e.g., CAL. BUS. & PROF. CODE § 19,835.5A(6) (West Supp. 1999).
204. See, e.g., N.M. STAT. ANN. § 60-2E-26(E) (Michie 1997); see also Kyl Bill Hearing, supra note 5, at 5 (statement of Sen. Bryan) ("In Nevada, one of our most important gaming regulations is a ban on gambling until age 21.").
205. See, e.g., N.M. STAT. ANN. § 60-2E-26(E) (Michie 1997); see also Kyl Bill Hearing, supra note 5, at 5 (statement of Sen. Bryan) ("In Nevada, one of our most important gaming regulations is a ban on gambling until age 21.").
206. See, e.g., N.J. STAT. ANN. § 5:12-71 (West 1996).
207. See Lane Kelley, Betting with Internet Casino Can Be a Real Roll of the Dice, SUNSENTINEL (Ft. Lauderdale, Fla.), Sept. 8, 1997, at 1A; Mark Balestra, What Gives?, ROLLING GOOD TIMES (last modified Oct. 23, 1998) 〈http://www.rgtonline.com/sportspage/ artlisting.cfm/2848〉 (describing difficulties in collecting winnings from one sports gambling site).
208. See Lane Kelley, Betting with Internet Casino Can Be a Real Roll of the Dice, SUNSENTINEL (Ft. Lauderdale, Fla.), Sept. 8, 1997, at 1A; Mark Balestra, What Gives?, ROLLING GOOD TIMES (last modified Oct. 23, 1998) 〈http://www.rgtonline.com/sportspage/ artlisting.cfm/2848〉 (describing difficulties in collecting winnings from one sports gambling site).
209. See Kyl Bill Hearing, supra note 5, at 11 (statement of James E. Doyle, Att'y Gen., State of Wis.).
210. See Minnesota v. Granite Gate Resorts, No. C6-95-7227, 1996 WL 767431, at *4 (Minn. Dist. Ct. Dec. 11, 1996) (quoting a WagerNet advertisement claiming to offer "a legal way to bet on sporting events from anywhere in the world . . . 24 hours a day").
211. This is of particular concern if, as some have suggested, "the bulk of gambling revenue, as much as 80 percent comes from a small percentage of gamblers, about 20 percent." See O'BRIEN, supra note 3, at 5.
212. See Granite Gate, 1996 WL 767431, at *4; see also Kyl Bill Hearing, supra note 5, at 5 (statement of Sen. Bryan) ("[T]here is no fool-proof way of ensuring that children can't access the Internet gambling site."); id. ("Over the Internet, there is simply no effective way to prohibit access by children.").
213. See Granite Gate, 1996 WL 767431, at *4; see also Kyl Bill Hearing, supra note 5, at 5 (statement of Sen. Bryan) ("[T]here is no fool-proof way of ensuring that children can't access the Internet gambling site."); id. ("Over the Internet, there is simply no effective way to prohibit access by children.").
214. According to some experts, between four and eight percent of adolescents in North America "'have a very serious gambling problem.'" O'BRIEN, supra note 3, at 245 (quoting Jeffrey Derevensky, Professor of Child Psychology, McGill University). Sports betting and card playing often "act[] as 'gateways' to other forms of gambling and substance abuse." Id. (quoting Howard Schaffer, Clinical Psychologist, Harvard University Medical School).
215. According to some experts, between four and eight percent of adolescents in North America "'have a very serious gambling problem.'" O'BRIEN, supra note 3, at 245 (quoting Jeffrey Derevensky, Professor of Child Psychology, McGill University). Sports betting and card playing often "act[] as 'gateways' to other forms of gambling and substance abuse." Id. (quoting Howard Schaffer, Clinical Psychologist, Harvard University Medical School).
216. "According to experts on problem gaming, access to illegal sports betting on the Internet dramatically increases the risk that people will become active, pathological gamblers. The National Council on Problem Gambling reports that sports betting is among the most popular forms of gambling for compulsive gambler [sic] in the United States." Kyl Bill Hearing, supra note 5, at 15 (statement of Jeff Pash, Executive Vice President, NFL).
217. See David Post, Gambling on Internet Laws, AM. LAW., Sept. 1998, at 95 (arguing that tracking individual gamblers "will prove ineffective because these detection mechanisms can so easily be evaded" by disabling the site-recording features of the gambler"s hard drive, encrypting an alias, or accessing a remote computer as the "host" for a gambling session).
218. 18 U.S.C. § 1084(a) (1994); see also N.Y. PENAL LAW § 225.00-.40 (McKinney 1989 & Supp. 1998) (creating a statutory framework under which an individual bettor does not commit a crime for placing bets, but outlawing participation in any gambling operation other than as a player); People v. Giordano, 87 N.Y.2d 441, 446-47 (1995) (interpreting New York"s gambling statute). New York"s Law of General Obligations § 5-401, a civil provision, declares "all wagers, bets or stakes . . . unlawful" and provides a civil cause of action against a person placing or accepting bets or wagers. N.Y. GEN. OBLIG. LAW § 5-401 (McKinney 1989). Proposed federal legislation would have targeted the individual gambler as well, making it "unlawful for a person knowingly to use the Internet or any other interactive computer service . . . to place, receive, or otherwise make a bet or wager with any person . . . ." H.R. 4276, 105th Cong. (1998).
219. 18 U.S.C. § 1084(a) (1994); see also N.Y. PENAL LAW § 225.00-.40 (McKinney 1989 & Supp. 1998) (creating a statutory framework under which an individual bettor does not commit a crime for placing bets, but outlawing participation in any gambling operation other than as a player); People v. Giordano, 87 N.Y.2d 441, 446-47 (1995) (interpreting New York"s gambling statute). New York"s Law of General Obligations § 5-401, a civil provision, declares "all wagers, bets or stakes . . . unlawful" and provides a civil cause of action against a person placing or accepting bets or wagers. N.Y. GEN. OBLIG. LAW § 5-401 (McKinney 1989). Proposed federal legislation would have targeted the individual gambler as well, making it "unlawful for a person knowingly to use the Internet or any other interactive computer service . . . to place, receive, or otherwise make a bet or wager with any person . . . ." H.R. 4276, 105th Cong. (1998).
220. 18 U.S.C. § 1084(a) (1994); see also N.Y. PENAL LAW § 225.00-.40 (McKinney 1989 & Supp. 1998) (creating a statutory framework under which an individual bettor does not commit a crime for placing bets, but outlawing participation in any gambling operation other than as a player); People v. Giordano, 87 N.Y.2d 441, 446-47 (1995) (interpreting New York"s gambling statute). New York"s Law of General Obligations § 5-401, a civil provision, declares "all wagers, bets or stakes . . . unlawful" and provides a civil cause of action against a person placing or accepting bets or wagers. N.Y. GEN. OBLIG. LAW § 5-401 (McKinney 1989). Proposed federal legislation would have targeted the individual gambler as well, making it "unlawful for a person knowingly to use the Internet or any other interactive computer service . . . to place, receive, or otherwise make a bet or wager with any person . . . ." H.R. 4276, 105th Cong. (1998).
221. 18 U.S.C. § 1084(a) (1994); see also N.Y. PENAL LAW § 225.00-.40 (McKinney 1989 & Supp. 1998) (creating a statutory framework under which an individual bettor does not commit a crime for placing bets, but outlawing participation in any gambling operation other than as a player); People v. Giordano, 87 N.Y.2d 441, 446-47 (1995) (interpreting New York"s gambling statute). New York"s Law of General Obligations § 5-401, a civil provision, declares "all wagers, bets or stakes . . . unlawful" and provides a civil cause of action against a person placing or accepting bets or wagers. N.Y. GEN. OBLIG. LAW § 5-401 (McKinney 1989). Proposed federal legislation would have targeted the individual gambler as well, making it "unlawful for a person knowingly to use the Internet or any other interactive computer service . . . to place, receive, or otherwise make a bet or wager with any person . . . ." H.R. 4276, 105th Cong. (1998).
222. 18 U.S.C. § 1084(a) (1994); see also N.Y. PENAL LAW § 225.00-.40 (McKinney 1989 & Supp. 1998) (creating a statutory framework under which an individual bettor does not commit a crime for placing bets, but outlawing participation in any gambling operation other than as a player); People v. Giordano, 87 N.Y.2d 441, 446-47 (1995) (interpreting New York"s gambling statute). New York"s Law of General Obligations § 5-401, a civil provision, declares "all wagers, bets or stakes . . . unlawful" and provides a civil cause of action against a person placing or accepting bets or wagers. N.Y. GEN. OBLIG. LAW § 5-401 (McKinney 1989). Proposed federal legislation would have targeted the individual gambler as well, making it "unlawful for a person knowingly to use the Internet or any other interactive computer service . . . to place, receive, or otherwise make a bet or wager with any person . . . ." H.R. 4276, 105th Cong. (1998).
223. See, e.g., MASS. GEN. LAWS ch. 271, § 17A (1990).
224. See Robbins, supra note 18, at 27.
225. See Kenneth D. Bassinger, Note, Dormant Commerce Clause Limits on State Regulation of the Internet: The Transportation Analogy, 32 GA. L. REV. 889, 920-22 (1998) (analyzing the Louisiana Internet gambling statute and concluding that it "overreaches the boundaries imposed by the Constitution and is ripe for a Commerce Clause challenge," in large part because of its "imprecise language"); Post, supra note 136, at 97 (arguing that dormant Commerce Clause concerns require a national solution to Internet gambling).
226. See Kenneth D. Bassinger, Note, Dormant Commerce Clause Limits on State Regulation of the Internet: The Transportation Analogy, 32 GA. L. REV. 889, 920-22 (1998) (analyzing the Louisiana Internet gambling statute and concluding that it "overreaches the boundaries imposed by the Constitution and is ripe for a Commerce Clause challenge," in large part because of its "imprecise language"); Post, supra note 136, at 97 (arguing that dormant Commerce Clause concerns require a national solution to Internet gambling).
227. See Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959).
228. See Seaboard Air Line Ry. v. Blackwell, 244 U.S. 310 (1917).
229. 969 F. Supp. 160, 169 (S.D.N.Y. 1997).
230. N.Y. PENAL LAW § 235.21(3) (McKinney Supp. 1998).
231. Id.
232. American Libraries Ass"n, 969 F. Supp. at 161.
233. Id. at 168-69.
234. Id. at 169.
235. Id.
236. Post, supra note 136, at 97 (citation omitted).
237. See John Markoff, On-Line Service Blocks Access to Topics Called Pornographic, N. Y. TIMES, Dec. 29, 1995, at Al; Paul Taylor, Internet Groups Suspended over Pornography Fears, FIN. TIMES (London), Dec. 29, 1995, at 1.
238. See John Markoff, On-Line Service Blocks Access to Topics Called Pornographic, N. Y. TIMES, Dec. 29, 1995, at Al; Paul Taylor, Internet Groups Suspended over Pornography Fears, FIN. TIMES (London), Dec. 29, 1995, at 1.
239. 663 N.Y.S.2d 468 (Sup. Ct. 1997).
240. Id. at 475.
241. Id.
242. Id.
243. The problem of inconsistent or differing standards created by these laws, however, is hardly insignificant. For that reason, courts faced with certifying national class action cases brought under state consumer-protection laws often refuse to do so, because "variations in state laws" make the proposed class unmanageable. See, e.g., Castano v. American Tobacco Co., 84 F.3d 734, 742 & n.15 (5th Cir. 1996).
244. See Thompson v. Handa-Lopez, Inc., 998 F. Supp. 738 (W.D. Tex. 1998) (alleging that an Internet gambling Web site violated the Texas Deceptive Trade Practices Act by failing to pay winnings); Minnesota v. Granite Gate Resorts, No. C6-95-7227, 1996 WL 767431, at *1 (Minn. Dist. Ct. Dec. 11, 1996) (noting the Minnesota Attorney General"s allegation that an Internet advertisement claiming Internet gambling was legal in Minnesota was false advertising under a consumer-protection law), aff"d, 568 N.W.2d 715 (Minn. Ct. App. 1997); Missouri Officials Sue Indian Tribe, Seeking To Shut Down Internet Gambling Site, 2 Elec. Info. Pol"y & L. Rep. (BNA) 617, 617-18 (June 13, 1997) (discussing Nixon v. Coeur d"Alene Tribe, No. CV-97-013053 (Mo. Cir. Ct. Jackson County May 28, 1997), in which prosecutors alleged that an Internet gambling site was in violation of Missouri"s Merchandising Practices Act).
245. See Thompson v. Handa-Lopez, Inc., 998 F. Supp. 738 (W.D. Tex. 1998) (alleging that an Internet gambling Web site violated the Texas Deceptive Trade Practices Act by failing to pay winnings); Minnesota v. Granite Gate Resorts, No. C6-95-7227, 1996 WL 767431, at *1 (Minn. Dist. Ct. Dec. 11, 1996) (noting the Minnesota Attorney General"s allegation that an Internet advertisement claiming Internet gambling was legal in Minnesota was false advertising under a consumer-protection law), aff"d, 568 N.W.2d 715 (Minn. Ct. App. 1997); Missouri Officials Sue Indian Tribe, Seeking To Shut Down Internet Gambling Site, 2 Elec. Info. Pol"y & L. Rep. (BNA) 617, 617-18 (June 13, 1997) (discussing Nixon v. Coeur d"Alene Tribe, No. CV-97-013053 (Mo. Cir. Ct. Jackson County May 28, 1997), in which prosecutors alleged that an Internet gambling site was in violation of Missouri"s Merchandising Practices Act).
246. See Thompson v. Handa-Lopez, Inc., 998 F. Supp. 738 (W.D. Tex. 1998) (alleging that an Internet gambling Web site violated the Texas Deceptive Trade Practices Act by failing to pay winnings); Minnesota v. Granite Gate Resorts, No. C6-95-7227, 1996 WL 767431, at *1 (Minn. Dist. Ct. Dec. 11, 1996) (noting the Minnesota Attorney General"s allegation that an Internet advertisement claiming Internet gambling was legal in Minnesota was false advertising under a consumer-protection law), aff"d, 568 N.W.2d 715 (Minn. Ct. App. 1997); Missouri Officials Sue Indian Tribe, Seeking To Shut Down Internet Gambling Site, 2 Elec. Info. Pol"y & L. Rep. (BNA) 617, 617-18 (June 13, 1997) (discussing Nixon v. Coeur d"Alene Tribe, No. CV-97-013053 (Mo. Cir. Ct. Jackson County May 28, 1997), in which prosecutors alleged that an Internet gambling site was in violation of Missouri"s Merchandising Practices Act).
247. See Pennsylvania Internet Gambling Operation Enjoined from Soliciting Missouri Residents, 2 Elec. Info. Pol"y & L. Rep. (BNA) 585, 585-86 (June 6, 1997) [hereinafter Pennsylvania Internet] (discussing Missouri v. Interactive Gaming & Communications Corp., No. CV 97-7808 (Mo. Cir. Ct. Jackson County May 22, 1997)).
248. See Pennsylvania Internet Gambling Operation Enjoined from Soliciting Missouri Residents, 2 Elec. Info. Pol"y & L. Rep. (BNA) 585, 585-86 (June 6, 1997) [hereinafter Pennsylvania Internet] (discussing Missouri v. Interactive Gaming & Communications Corp., No. CV 97-7808 (Mo. Cir. Ct. Jackson County May 22, 1997)).
249. See Pennsylvania Internet Gambling Operation Enjoined from Soliciting Missouri Residents, 2 Elec. Info. Pol"y & L. Rep. (BNA) 585, 585-86 (June 6, 1997) [hereinafter Pennsylvania Internet] (discussing Missouri v. Interactive Gaming & Communications Corp., No. CV 97-7808 (Mo. Cir. Ct. Jackson County May 22, 1997)).
250. For example, a sweepstakes sponsor who failed to post the New York bond would be required to label its sweepstakes "not open to New York residents" to avoid liability under the statute. See N.Y. GEN. BUS. LAW § 369-e(4) (McKinney 1996) (requiring a trust account or bond to be posted with the Secretary of State whenever a sweepstakes prize exceeds $5000). Similarly, Florida"s Secretary of State has opined that Internet sweepstakes that require entrants to subscribe to an Internet service provider are illegal lotteries, because the subscription constitutes consideration. See Michael Barkow, Promotion Law Overview and FAQ § C (last modified June 24, 1998) 〈http://www.adlaw.com/RC/SWEEPS/rf_promolaw.html〉.
251. For example, a sweepstakes sponsor who failed to post the New York bond would be required to label its sweepstakes "not open to New York residents" to avoid liability under the statute. See N.Y. GEN. BUS. LAW § 369-e(4) (McKinney 1996) (requiring a trust account or bond to be posted with the Secretary of State whenever a sweepstakes prize exceeds $5000). Similarly, Florida"s Secretary of State has opined that Internet sweepstakes that require entrants to subscribe to an Internet service provider are illegal lotteries, because the subscription constitutes consideration. See Michael Barkow, Promotion Law Overview and FAQ § C (last modified June 24, 1998) 〈http://www.adlaw.com/RC/SWEEPS/rf_promolaw.html〉.
252. See Pennsylvania Internet, supra note 158, at 585.
253. See supra notes 56-75 and accompanying text.
254. Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294 (3d Cir. 1996).
255. Id. (citing PA. STAT. ANN., tit. 72, § 3761-9(c) (West 1995)).
256. Id. (citing PA. STAT. ANN., tit. 72, § 3761-9(c) (West 1995)).
257. See Pic-A-State Pa., Inc. v. Pennsylvania, Civ. A. No. 1: CV-93-0814, 1993 WL 325539 (M.D. Pa. July 23, 1993), rev"d, 42 F.3d 175 (3d Cir. 1994).
258. See supra note 53; see also Pic-A-State Pa., Inc., 42 F.3d at 180 (reversing the district court"s order declaring the statute unconstitutional and permanently enjoining its enforcement, on the ground that the Interstate Wagering Amendment had been enacted during the period between the district court"s decision and the oral argument in the Third Circuit).
259. Pic-A-State Pa., 76 F.3d at 1297.
260. Gorman & Loo, supra note 18, at 708 (quoting I. Nelson Rose, Wire Cops: The A.G."s Take on Internet Gambling, CASINO EXECUTIVE, Aug. 22, 1995, at 22).
261. Gorman & Loo, supra note 18, at 708 (quoting I. Nelson Rose, Wire Cops: The A.G."s Take on Internet Gambling, CASINO EXECUTIVE, Aug. 22, 1995, at 22).
262. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985); World-Wide Volkswagen v. Woodson, 444 U.S. 286, 295 (1980). For examples of Internet-related cases taking this two-pronged approach, see infra notes 170-171.
263. See Zippo Mfg. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1123-24 (W.D. Pa. 1997).
264. For instance, the Web site at issue in Bensusan Restaurant Corp. v. King, 937 F. Supp. 295, 297 (S.D.N.Y. 1996), aff"d, 126 F.3d 25 (2d Cir. 1997), simply contained "general information about the [night]club in Missouri as well as a calendar of events and ticketing information." See also Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419 (9th Cir. 1997) (dismissing for lack of personal jurisdiction an action brought in Arizona against a company that had no contacts with the forum state other than maintaining "an essentially passive home page on the [W]eb," which was accessible by anyone and from anywhere, and holding there must be ""something more" to indicate that the defendant purposefully (albeit electronically) directed his activity in a substantial way to the forum state"); Scherr v. Abrahams, No. 97 C 5453, 1998 WL 299678, at *4 (N.D. Ill. May 29, 1998) (holding that where advertising on the defendant"s Web site was not specifically targeted at Illinois consumers, contacts were not sufficient to create jurisdiction over the defendant); Blackburn v. Walker Oriental Rug Galleries, 999 F. Supp. 636, 639 (E.D. Pa. 1998) (holding that a "passive" Web site featuring the defendant"s national advertising is not sufficient contact with a forum for an exercise of personal jurisdiction); SF Hotel Co. v. Energy Invs., 985 F. Supp. 1032, 1035 (D. Kan. 1997) (holding that, in a trademark infringement case involving the mark "Sierra Suites," a passive Web site that "provides general information about its hotel" did not support personal jurisdiction over the Florida defendant); Transcraft Corp. v. Doonan Trailer Corp., No. 97 C 4943, 1997 WL 733905, at *8-*10 (N.D. Ill. Nov. 12, 1997) (refusing to exercise personal jurisdiction over a Kansas defendant based on the existence of a passive Web site and several other commercial activities allegedly connected with Illinois); Agar Corp. v. Multi-Fluid Inc., No. 95-5105, 1997 WL 829340 (S.D. Tex. June 25, 1997) (refusing to exercise personal jurisdiction over a Norwegian defendant based on its passive Web site and several other tenuous links to Texas).
265. Shapiro v. Santa Fe Gaming Corp., No. 97 C 6117, 1998 WL 102677, at *2 (N.D. Ill. Feb. 27, 1998) (characterizing the law as well-settled that the maintenance of a toll-free telephone number and a passive, non-advertising Web site, "without more, is insufficient to satisfy jurisdiction"); see also Bunn-O-Matic Corp. v. Bunn Coffee Serv., No. 97-3259, 1998 WL 207860 (C.D. Ill. Apr. 1, 1998) (holding that a "passive" Web site constitutes "entry" into a forum); Hasbro, Inc. v. Clue Computing, 994 F. Supp. 34, 41-42, 43-44 (D. Mass. 1997) (expressing concern over cases holding that the existence of a Web site alone is sufficient to allow jurisdiction but noting that, in the case before it, the injury occurred in Massachusetts and defendants solicited business there by, inter alia, soliciting e-mail contacts); Superguide Corp. v. Kegan, 987 F. Supp. 481, 487 (W.D.N.C. 1997) (exercising personal jurisdiction over an out-of-state defendant based solely on the accessibility in North Carolina of the defendant"s Web site); Smith v. Hobby Lobby Stores, 968 F. Supp. 1356, 1364 (W.D. Ark. 1997) (requiring that, to be subject to jurisdiction, Web site advertising be actively solicitous, thus preventing the chaotic conclusion "that a company is subject to personal jurisdiction at each and every location on the planet where someone is capable of logging on the Internet"); Inset Sys. v. Instruction Set, Inc., 937 F. Supp. 161, 165 (D. Conn. 1996) (finding a Web site that listed a toll-free number subject to jurisdiction because advertising via the Internet was solicitation of a sufficient repetitive nature).
266. See CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1268 (6th Cir. 1996) (finding jurisdiction where a Web site user actively communicated with an online service and used it to sell his software over the Internet); Mieczkowski v. Masco Corp., 997 F. Supp. 782, 787 (E.D. Tex. 1998) (finding adequate jurisdiction exercised where remote customers would view purchases online, check their status, and communicate with a sales representative).
267. Burk, supra note 10, ¶ 54.
268. For a general discussion of purposeful availment, see Hanson v. Denckla, 357 U.S. 235, 253 (1958). See also Burger King v. Rudzewicz, 471 U.S. 462, 474-76 (1985) (holding that the deliberate creation of contacts with a particular jurisdiction satisfies the personal jurisdiction test). The Southern District of New York complaints reveal that many gambling site operators specifically request information about their customers" locations. See Sealed Complaint ¶ 11, United States v. Moore, No. 98-m-00677) (S.D.N.Y. Mar. 24, 1998) ("www.galaxysports.com").
269. For a general discussion of purposeful availment, see Hanson v. Denckla, 357 U.S. 235, 253 (1958). See also Burger King v. Rudzewicz, 471 U.S. 462, 474-76 (1985) (holding that the deliberate creation of contacts with a particular jurisdiction satisfies the personal jurisdiction test). The Southern District of New York complaints reveal that many gambling site operators specifically request information about their customers" locations. See Sealed Complaint ¶ 11, United States v. Moore, No. 98-m-00677) (S.D.N.Y. Mar. 24, 1998) ("www.galaxysports.com").
270. For a general discussion of purposeful availment, see Hanson v. Denckla, 357 U.S. 235, 253 (1958). See also Burger King v. Rudzewicz, 471 U.S. 462, 474-76 (1985) (holding that the deliberate creation of contacts with a particular jurisdiction satisfies the personal jurisdiction test). The Southern District of New York complaints reveal that many gambling site operators specifically request information about their customers" locations. See Sealed Complaint ¶ 11, United States v. Moore, No. 98-m-00677) (S.D.N.Y. Mar. 24, 1998) ("www.galaxysports.com").
271. 998 F. Supp. 738 (W.D. Tex. 1998).
272. Id. at 744.
273. Id. According to the court, the plaintiff "entered into a contract to play the game on Defendant"s Web site," id. at 741, under which "the Defendant would send the winnings to the Plaintiff in Texas," id. at 744. But cf. Humphrey v. Granite Gate Resorts, Inc., 568 N.W.2d 715, 719 (Minn. Ct. App. 1997) (holding that long-arm jurisdiction was properly exercised over defendants located in Nevada, who operated an Internet casino with a server in Belize, based on transmissions of information advertising the casino, even though no betting transactions occurred).
274. See infra notes 196-209 and accompanying text (detailing the contacts of Internet gambling sites with their customers" jurisdictions in the Southern District of New York complaints). In addition to jurisdictional due process concerns, there also is the due process issue of whether, prior to the first Internet gambling prosecutions, Internet gambling operators had fair notice that their operations were condemned by § 1084. Given the breadth of § 1084, its prior application to the offshore, telephone-based equivalents of Internet gambling, the legislative history indicating its applicability to all forms of gambling operations relying on "wire communications facilities," and the number of articles noting the possibility of prosecutions under § 1084, it is difficult to argue they did not. Absent a showing that the statute is void for vagueness - and § 1084 has survived challenges on that basis, see United States v. Borgese, 235 F. Supp. 286, 295-97 (S.D.N.Y. 1964); United States v. Smith, 209 F. Supp. 907, 918 (E.D. Ill. 1962) - misjudging the scope of § 1084 does not create a due process issue. Nor does such misjudging establish a lack of requisite intent. See United States v. Spy Factory, Inc., 960 F. Supp. 684, 687-88 (S.D.N.Y. 1997) (distinguishing between statutes that set forth knowledge of a specific legal duty as an element of a crime and those that do not and applying the well-established maxim that, in the latter case, "ignorance of the law is no excuse").
275. See sources cited supra note 18.
276. See Kyl Bill Hearing, supra note 5, at 41-43 (statement of Jay Cohen, President & CEO, World Sports Exch.).
277. See 2 CABOT, supra note 4, at 73.
278. "There"s a terrible stigma attached to everything that is done in this quarter of the world [and that] give[s] rise to a feeling that we couldn"t possibly . . . run a virtual gaming operation on a level that would be acceptable to the standards of the United States. . . . [O]perators in Antigua and Barbuda are subject to the laws of Antigua and Barbuda and they are not subject to any laws which are not identifiable under a specific treaty with the United States." ABC Nightline (ABC television broadcast, Apr. 7, 1998) (interview with Jeannette McAlister, Antiguan international investment worker).
279. See Robbins, supra note 18, at 41; Gorman & Loo, supra note 18, at 686.
280. 21 U.S.C. § 959 (1994) (proscribing "[p]ossession, manufacture, or distribution of controlled substance or listed chemical"). "Section 959, prohibiting the distribution of narcotics intending that they be imported into the United States, is clearly meant to apply extraterritorially. The statute expressly states that it is "intended to reach acts of manufacture or distribution committed outside the territorial jurisdiction of the United States."" United States v. Noriega, 746 F. Supp. 1506, 1515 (S.D. Fla. 1990) (quoting 21 U.S.C. § 859(c)), aff"d, 117 F.3d 1206 (11th Cir. 1997), cert. denied, 118 S. Ct. 1389 (1998).
281. 18 U.S.C. § 1084 (1994).
282. Id. § 1952.
283. Id. § 1953.
284. Id. § 1953(a).
285. See Noriega, 746 F. Supp. at 1518-19 (noting that the broad statutory language of the Travel Act is intended "to reach criminal activities . . . beyond state and national borders" and applies if "the defendant causes interstate travel or activity to promote an unlawful purpose . . . whether or not the defendant is physically present in the United States").
286. 63 F.2d 706 (5th Cir. 1933).
287. Id. at 709 (Sibley, J., concurring).
288. See Noriega, 746 F. Supp. at 1515 ("[B]ecause Noriega"s conduct in Panama is alleged to have resulted in a direct effect within the United States, the Court concludes that extraterritorial jurisdiction is appropriate as a matter of international law.").
289. See Rocha v. United States, 288 F.2d 545, 548 (9th Cir. 1961) (finding that jurisdiction "rested not only on the act abroad, but also on the effect it produced within the boundaries of the United States").
290. United States v. Moncini, 882 F.2d 401, 403 (9th Cir. 1989).
291. See id. (holding that the crime continued as the letter traveled through the mail and reached its U.S. destinations and was not "complete at the time the letter was deposited in the mail in Italy").
292. See Sealed Complaint ¶ 29, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sdbg.com"); Sealed Complaint ¶¶ 24-25, United States v. J. Cohen, (No. 98-m-00465 (S.D.N.Y. Mar. 2,1998) ("www.wsex.com").
293. See Sealed Complaint ¶ 29, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sdbg.com"); Sealed Complaint ¶¶ 24-25, United States v. J. Cohen, (No. 98-m-00465 (S.D.N.Y. Mar. 2,1998) ("www.wsex.com").
294. See Sealed Complaint ¶ 9, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sbdg.com").
295. See id. ¶¶ 22-23.
296. See id. ¶ 11.
297. See Sealed Complaint ¶ 20e n.4, United States v. J. Cohen, No. 98-m-00465 (S.D.N.Y. Mar. 2, 1998) ("www.wsex.com").
298. See Sealed Complaint ¶ 11, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sbdg.com").
299. See Sealed Complaint ¶ 10, United States v. J. Cohen, No. 98-m-00465 (S.D.N.Y. Mar. 2,1998) ("www.wsex.com").
300. See id. ¶ 23.
301. See Sealed Complaint ¶ 18, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sbdg.com").
302. See Sealed Complaint ¶¶ 16, 18, United States v. J. Cohen, No. 98-m-00465 (S.D.N.Y. Mar. 2, 1998) ("www.wsex.com").
303. See Sealed Complaint ¶ 18, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sbdg.com").
304. See id. ¶ 28.
305. See Sealed Complaint ¶¶ 21-22, United States v. J. Cohen, No. 98-m-00465 (S.D.N.Y. Mar. 2, 1998) ("www.wsex.com").
306. See Sealed Complaint ¶ 26, United States v. Budin, No. 98-m-00463 (S.D.N.Y. Mar. 2, 1998) ("www.sbdg.com").
307. See Computer Industry Almanac Inc., Top 15 Countries with the Most Internet Users, (last modified Jan. 1998) 〈http://www.c-i-a.com/199801pr.htm〉.
308. See Burk, supra note 10, ¶ 6; Johnson & Post, supra note 10, at 1367.
309. See supra notes 165-178 and accompanying text.
310. See Hardy, supra note 17, at 1000.
311. 17 U.S.C. § 102(a) (1994). The Act further defines a "device" or "machine" as "one now known or later developed." Id. § 101.
312. H.R. REP. No. 94-1476, at 51 (1976).
313. Copyright Law Revision: Hearings on H.R. 4347, 5680, 6831, 6835 Before Subcomm. No. 3 of the House Comm. on the Judiciary, 89th Cong. 57 (1965) (statement of George D. Cary, Deputy Register of Copyright). Further, although the concept of fixation was, from the outset, the sine qua non for protection under the new Act, "it makes no difference what the form, manner, or medium of fixation may be - whether it is in words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia, whether embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form." H.R. REP. No. 94-1476, at 52 (1976).
314. Copyright Law Revision: Hearings on H.R. 4347, 5680, 6831, 6835 Before Subcomm. No. 3 of the House Comm. on the Judiciary, 89th Cong. 57 (1965) (statement of George D. Cary, Deputy Register of Copyright). Further, although the concept of fixation was, from the outset, the sine qua non for protection under the new Act, "it makes no difference what the form, manner, or medium of fixation may be - whether it is in words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia, whether embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form." H.R. REP. No. 94-1476, at 52 (1976).
315. 972 F. Supp. 804 (S.D.N.Y. 1997). The author, along with others at Debevoise & Plimpton, represented the defendants in this case.
316. See id. at 826-27.
317. See, e.g., NATIONAL COMM"N ON NEW TECHNOLOGICAL USES OF COPYRIGHTED WORKS, FINAL REPORT (1978).
318. Tasini, 972 F. Supp. at 818; cf. Ryan v. Carl Corp., 23 F. Supp.2d 1146, 1149-50 (N.D. Cal. 1998) (concluding that 17 U.S.C. § 201(c) (1994) does not permit the republication of individual contributions apart from other contributions in the original or revised collective work, but questioning the equities and societal inefficiencies of such a result).
319. 907 F. Supp. 1361, 1365 (N.D. Cal. 1995).
320. See id. at 1367-68.
321. Id. at 1369.
322. Id. at 1370. The wisdom of the Netcom decision did not escape Congress, which recently amended the Copyright Act to compel the same conclusion.
323. See Digital Millennium Copyright Act, § 202(a), 112 Stat. 2860, 2877-86 (1998) (to be codified at 17 U.S.C. § 512).
324. Netcom, 907 F. Supp. at 1370. The Usenet is "a worldwide community of electronic [bulletin board services] that is closely associated with the Internet and with the Internet community." Id. at 1365 n.4.
325. 663 N.Y.S.2d 468 (Sup. Ct. 1997).
326. A "listserv" is an e-mail discussion group. Id. at 471.
327. Id. at 475.
328. United States Attorney, supra note 106. The SEC also has vigorously pursued individuals and companies who use the Internet to promote stocks in ways that violate the securities laws. Since 1995, when it began to police the Internet, it has brought a total of 61 on-line fraud and related cases. See SEC Charges 44 Internet Stock Promoters with Fraud, DOW JONES INTERACTIVE BUS. & FIN. REP., Oct. 28, 1998, at *2 [hereinafter SEC Charges].
329. United States Attorney, supra note 106. The SEC also has vigorously pursued individuals and companies who use the Internet to promote stocks in ways that violate the securities laws. Since 1995, when it began to police the Internet, it has brought a total of 61 on-line fraud and related cases. See SEC Charges 44 Internet Stock Promoters with Fraud, DOW JONES INTERACTIVE BUS. & FIN. REP., Oct. 28, 1998, at *2 [hereinafter SEC Charges].
330. See, e.g., Robbins, supra note 18, at 51 ("Unlike traditional illegal gambling operations, which require a secure and readily accessible location for customers, Internet casino operations can move from country to country while maintaining the same Web site."); Richard Raysman & Peter Brown, Cyber-Casinos: Gambling Meets the Internet, N.Y. L.J., Aug. 12, 1997, at 3 ("[U]nlike traditional casinos, operators of cyber-casinos have the ability to move from country to country, since operation of a cyber-casino merely requires maintenance of a Web site."); Kelly Flaherty, Feds" Internet Bet Case Avoids "Cyber" Issues, L.J. EXTRA! ¶ 13 (Mar. 6, 1998) 〈http://www.ljextra.com/internet/0306betjuris.html〉 ("[If gambling site operators] choose to remain outside the U.S. and don"t have any financial assets within American borders, they may be effectively out of reach of the justice system. Or they could view the fines as a cost of doing business.").
331. See, e.g., Robbins, supra note 18, at 51 ("Unlike traditional illegal gambling operations, which require a secure and readily accessible location for customers, Internet casino operations can move from country to country while maintaining the same Web site."); Richard Raysman & Peter Brown, Cyber-Casinos: Gambling Meets the Internet, N.Y. L.J., Aug. 12, 1997, at 3 ("[U]nlike traditional casinos, operators of cyber-casinos have the ability to move from country to country, since operation of a cyber-casino merely requires maintenance of a Web site."); Kelly Flaherty, Feds" Internet Bet Case Avoids "Cyber" Issues, L.J. EXTRA! ¶ 13 (Mar. 6, 1998) 〈http://www.ljextra.com/internet/0306betjuris.html〉 ("[If gambling site operators] choose to remain outside the U.S. and don"t have any financial assets within American borders, they may be effectively out of reach of the justice system. Or they could view the fines as a cost of doing business.").
332. See, e.g., Robbins, supra note 18, at 51 ("Unlike traditional illegal gambling operations, which require a secure and readily accessible location for customers, Internet casino operations can move from country to country while maintaining the same Web site."); Richard Raysman & Peter Brown, Cyber-Casinos: Gambling Meets the Internet, N.Y. L.J., Aug. 12, 1997, at 3 ("[U]nlike traditional casinos, operators of cyber-casinos have the ability to move from country to country, since operation of a cyber-casino merely requires maintenance of a Web site."); Kelly Flaherty, Feds" Internet Bet Case Avoids "Cyber" Issues, L.J. EXTRA! ¶ 13 (Mar. 6, 1998) 〈http://www.ljextra.com/internet/0306betjuris.html〉 ("[If gambling site operators] choose to remain outside the U.S. and don"t have any financial assets within American borders, they may be effectively out of reach of the justice system. Or they could view the fines as a cost of doing business.").
333. See, for example, Network Solutions, Inc."s Domain Name Registration Policies, which require the name, address, phone, fax and e-mail address of an "administrative contact" for each registrant, see Network Solutions, Inc., Domain Name Registration Agreement § Q (last modified Mar. 1998) 〈ftp://rs.internic.net/templates/domain-template.txt〉, who can "answer non-technical questions about the legal entity"s plans for using the domain name and the procedures for establishing sub-domains," Domain Name Registration Agreement (Version 4.0) Instructions (last modified Mar. 30, 1998) 〈http://rs.internic.net/help/instructions.txt〉. Similar information is required for "technical" and "billing" contacts. See Network Solutions, Inc., supra, § Q.
334. See, for example, Network Solutions, Inc."s Domain Name Registration Policies, which require the name, address, phone, fax and e-mail address of an "administrative contact" for each registrant, see Network Solutions, Inc., Domain Name Registration Agreement § Q (last modified Mar. 1998) 〈ftp://rs.internic.net/templates/domain-template.txt〉, who can "answer non-technical questions about the legal entity"s plans for using the domain name and the procedures for establishing sub-domains," Domain Name Registration Agreement (Version 4.0) Instructions (last modified Mar. 30, 1998) 〈http://rs.internic.net/help/instructions.txt〉. Similar information is required for "technical" and "billing" contacts. See Network Solutions, Inc., supra, § Q.
335. See, for example, Network Solutions, Inc."s Domain Name Registration Policies, which require the name, address, phone, fax and e-mail address of an "administrative contact" for each registrant, see Network Solutions, Inc., Domain Name Registration Agreement § Q (last modified Mar. 1998) 〈ftp://rs.internic.net/templates/domain-template.txt〉, who can "answer non-technical questions about the legal entity"s plans for using the domain name and the procedures for establishing sub-domains," Domain Name Registration Agreement (Version 4.0) Instructions (last modified Mar. 30, 1998) 〈http://rs.internic.net/help/instructions.txt〉. Similar information is required for "technical" and "billing" contacts. See Network Solutions, Inc., supra, § Q.
336. See, e.g., Sealed Complaint ¶ 18, United States v. B. Cohen, No. 98-m-00462 (S.D.N.Y. Mar. 2, 1998) ("www.wsex.com").
337. See David Johnston, Use of Computer Network for Child Sex Sets off Raids, N.Y. TIMES, Sept. 14, 1995, at A1.
338. See, e.g., Dominic Bencivenga, Internet Cyberforce: SEC and FTC Crack Down on Online Fraud, N.Y. L.J., Sept. 3, 1998, at 5 ("SEC employs a cyberforce that includes more than 100 staff attorneys, analysts and accountants who over the past few years have received special training in Internet surveillance. . . . More than 300 [FTC] staff members, including attorneys and investigators, have been trained in Internet surveillance. . . ."); see also Christopher Wolf & Scott Shorr, Cybercops Are Cracking Down on Internet Fraud, NAT"L L.J., Jan. 13, 1997, at B12 (detailing SEC, FTC, and state Internet prosecutions).
339. See, e.g., Dominic Bencivenga, Internet Cyberforce: SEC and FTC Crack Down on Online Fraud, N.Y. L.J., Sept. 3, 1998, at 5 ("SEC employs a cyberforce that includes more than 100 staff attorneys, analysts and accountants who over the past few years have received special training in Internet surveillance. . . . More than 300 [FTC] staff members, including attorneys and investigators, have been trained in Internet surveillance. . . ."); see also Christopher Wolf & Scott Shorr, Cybercops Are Cracking Down on Internet Fraud, NAT"L L.J., Jan. 13, 1997, at B12 (detailing SEC, FTC, and state Internet prosecutions).
340. Bencivenga, supra note 234, at 5 (quoting Jodie Bernstein, Director, FTC Bureau of Consumer Protection) (alteration in original).
341. See supra notes 8-18 and accompanying text.
342. See generally supra Part III.
343. See Sheri A. Dillon et al., Computer Crimes, 35 AM. CRIM. L. REV. 503, 504 (1998) (distinguishing between traditional crimes committed with a computer and "technologically specific offenses that are arguably not analogous to any non-computer crimes").
344. See supra note 17 and accompanying text.
345. See supra notes 216-239 and accompanying text. According to the FTC, "commerce on the Internet falls under the broad sweep of [its] statutory mandate," which is "to protect consumers from unfair or deceptive acts or practices." Electronic Commerce - Part 3: Hearings Before the Telecomm., Trade, and Consumer Protection Subcomm. of the House Comm. on Commerce, 105th Cong. 245 (1998) (statement of Eileen Harrington, Assoc. Dir., Bureau of Consumer Protection, FTC). Although "[m]ost of the Commission"s law enforcement actions . . . have involved old-fashioned scams dressed up in high-tech garb," id. at 247, the FTC"s traditional "unfair deceptive acts and practices" standard has proved media-neutral enough to derail "one scheme that uniquely and ingeniously exploited what can be done on the Internet and only on the Internet," id. at 249 (describing FTC v. Audiotex Connection, Inc., No. CV-97 0726 (DRH) (E.D.N.Y. Nov. 13, 1997), in which the FTC obtained a stipulated permanent injunction against "a scheme that "hijacked" consumers" computer modems by surreptitiously disconnecting them from their local Internet Service Provider . . . and reconnecting them to the Internet through a high-priced international modem connection, purportedly going to Moldova but actually terminating in Canada").
346. See Dillon et al., supra note 238, at 507 (arguing that the computer is the "object" of a crime when the offender targets the computer itself, as in theft of computer processor time or computerized services, the "subject" of a crime when it is the site of, source of, or reason for, "unique forms of asset loss," as in the distribution of viruses, or an "instrument" used to commit traditional crimes).
347. 74 F.3d 701 (6th Cir. 1996).
348. Id. at 706, 710. The Thomases were also convicted of sending obscene videotapes across state lines. See id. at 706.
349. See, e.g., Debra D. Burke, Cybersmut and the First Amendment: A Call for a New Obscenity Standard, 9 HARV. J.L. & TECH. 87, 126 (1996) (arguing that imputing to every network user the knowledge of hundreds of contemporary community standards "is simply unrealistic"); Pamela A. Huelster, Cybersex and Community Standards, 75 B.U. L. REV. 865 (1996) (suggesting, inter alia, that local standards should give way to a single, national obscenity standard for computer bulletin board services); Glenn Harlan Reynolds, Virtual Reality and "Virtual Welters": A Note on the Commerce Clause Implications of Regulating Cyberporn, 82 VA. L. REV. 535, 536 (1996) (suggesting that, in addition to First Amendment concerns, the Commerce Clause presents "serious difficulties" for locality-based regulation of computer bulletin board systems).
350. See, e.g., Debra D. Burke, Cybersmut and the First Amendment: A Call for a New Obscenity Standard, 9 HARV. J.L. & TECH. 87, 126 (1996) (arguing that imputing to every network user the knowledge of hundreds of contemporary community standards "is simply unrealistic"); Pamela A. Huelster, Cybersex and Community Standards, 75 B.U. L. REV. 865 (1996) (suggesting, inter alia, that local standards should give way to a single, national obscenity standard for computer bulletin board services); Glenn Harlan Reynolds, Virtual Reality and "Virtual Welters": A Note on the Commerce Clause Implications of Regulating Cyberporn, 82 VA. L. REV. 535, 536 (1996) (suggesting that, in addition to First Amendment concerns, the Commerce Clause presents "serious difficulties" for locality-based regulation of computer bulletin board systems).
351. See, e.g., Debra D. Burke, Cybersmut and the First Amendment: A Call for a New Obscenity Standard, 9 HARV. J.L. & TECH. 87, 126 (1996) (arguing that imputing to every network user the knowledge of hundreds of contemporary community standards "is simply unrealistic"); Pamela A. Huelster, Cybersex and Community Standards, 75 B.U. L. REV. 865 (1996) (suggesting, inter alia, that local standards should give way to a single, national obscenity standard for computer bulletin board services); Glenn Harlan Reynolds, Virtual Reality and "Virtual Welters": A Note on the Commerce Clause Implications of Regulating Cyberporn, 82 VA. L. REV. 535, 536 (1996) (suggesting that, in addition to First Amendment concerns, the Commerce Clause presents "serious difficulties" for locality-based regulation of computer bulletin board systems).
352. The Sixth Circuit was able to distinguish, on the facts before it, the Thomases" conduct from "a situation where the bulletin board operator had no knowledge or control over the jurisdiction where materials were distributed for downloading . . . . Defendants had in place methods to limit user access in jurisdictions where the risk of finding of obscenity was greater . . . . They knew they had a member in Memphis." Thomas, 74 F.3d at 711. The Thomas court also pointed out that the Supreme Court, in Sable Communications v. FCC, 492 U.S. 115, 125-26 (1989), "found no constitutional impediment" in requiring distributors of adult content to tailor their materials to the standards of a particular community. Thomas, 74 F.3d at 712.
353. See Dillon et al., supra note 238, at 506.
354. See, e.g., 18 U.S.C. § 1030 (1994 & Supp. III 1998) (prescribing penalties for engaging in "[f]raud and related activity in connection with computers"); id. § 2511 (1994 & Supp. III 1998) (prohibiting the "interception and disclosure of wire, oral, or electronic communications"); see also United States v. Peterson, 98 F.3d 502, 504 (9th Cir. 1996) (affirming the sentence of a computer hacker who pled guilty to, inter alia, violating the aforementioned statutes).
355. Dillon et al., supra note 238, at 504 n.4.
356. Hardy, supra note 17, at 1000 (commenting that libel or copyright infringement is the same offense whether committed via e-mail, fax, or U.S. mail).