State lotteries, including MI Lottery, continue to fight back against the Department of Justice’s (DOJ) reversal of its 2011 interpretation of the Wire Act.
In January when the DOJ’s Office of Legal Counsel published a new reinterpretation of the 1961 Federal Wire Act. The new reinterpretation states that the 1961 Federal Wire Act’s prohibitions are not limited to sports gambling as previously assumed.
In 2011 the Wire Act presumed to only apply to interstate sports betting. However, the DOJ now says the Wire Act applies to all gambling forms that utilize communication lines across federal commerce.
The Response
This sparked an outcry by the State of New Hampshire and by the New Hampshire’s iLottery. They immediately filed a lawsuit against the DOJ in federal court. New Hampshire and New Hampshire’s iLottery argue that the DOJ’s recent reinterpretation has no law support, thus, unconstitutional.
They argue the new interpretation ignores a key reliance that state lotteries placed upon the 2011 Wire Act opinion. A long-standing ruling that exempted state-run lotteries that utilized the internet for sales from the Wire Act.
Michigan based NeoPollard Interactive, LLC, a lottery systems provider, also filed a lawsuit in the New Hampshire Federal district court.
Michigan Files Amicus Curiae
Last Friday, Michigan State filed an amicus curiae brief in the New Hampshire case. This in support of the state of New Hampshire and of NeoPollard. An amicus curia is a lawsuit brief filed in a by interested parties that aren’t actual plaintiffs or defendants in a lawsuit.
In the brief, the State of Michigan reasons that the new reinterpretation puts MI Lottery in an untenable position. Either suspending its iLottery program, continuing offering its iLottery products knowing that there is a chance that the DOJ might choose to prosecute the state, or to invest significant money and time in attempting to make modifications to comply with the new reinterpretation.
Other States Join Michigan’s Brief
Alaska, Colorado, Delaware, the District of Columbia, Idaho, Kentucky, Mississippi, North Carolina, Rhode Island, Tennessee, Vermont, and Virginia all joined in Michigan’s brief.
In addition, New Jersey filed a separate amicus curiae. Although the judge denied that attempt, the court did indicate that Pennsylvania could also file an amicus curiae brief.
In conjunction with their complaints, both the State of New Hampshire and NeoPollard filed motions for summary judgment and requests for oral argument, arguing that the court needed to expedite the case as the DOJ has only delayed enforcement of its new policy on the Wire Act until June 14, 2019.
Those worried about the scope of the Wire Act suggest that a strict view of intrastate gaming with no intermediary routing would render just about all internet transactions in violation of the law.
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