Today's NYT once again asks the question whether the DOJ actually thinks that Internet gambling is illegal. Several U.S. celebrities like Jesse Ventura, Tom Arnold and Jim Kelly have signed lucrative contracts to endorse different offshore gaming sites. In researching the story, the NYT asked at least two different USAAs whether this type of "aiding and abetting" would violate federal law, as the DOJ has stated that other actions of advertisers, media companies, online payment providers and credit card companies does. No comment. Doesn't the federal government have some obligation to articulate what actions it believes violates law?
These celebrities do not some legal advice. I'm not sure who is more naive here, the celebrities or the "legal experts" cited in the NYT article. Jim Kelly, for instance, assures us that "when he signed the contract he was told he would be held harmless for any legal problems." In U.S. v. Cohen, Mr. Cohen received jail time. Is SportsInteraction.com going to be able to do Mr. Kelly's jail time? The article also states:
Legal experts said celebrities pursued by prosecutors could defend themselves by arguing that they were not aware that the enterprise they were promoting was illegal.
Is that really a defense now? I, for instance, can never go to jail for antitrust violations because I know almost nothing about criminal antitrust law. Good to know. Moreover, this statement cannot even be made with respect to sports gambling on the Internet because several people have been sent to jail for this unknown crime.
The most interesting part of the article is the sentiment that a $12 billion industry can't be wrong. Although this may shock our readers, I'm not particularly interested in the de-criminalization of Internet gambling, but I am generally interested in why some actions that seem to involve morality are legal, illegal, in-between, or of a changed status. What makes the change happen? Why does the de-criminalization of some acts (sodomy) take a long time or (prostitution) forever, but others happen quickly. I would be cynical and say money, but what about drugs? There has to be more than $12 billion involved in the illegal drug industry.
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1. Posted by J on November 16, 2005 @ 21:56 | Permalink
I think the gambling issue is unique because so many people have reaped the benefits of legalized gambling. Change is slow. My guess is that when the drug statutes started, the drug industry wasn't nearly what it is now (adjusting for inflation, of course). I would think necessarily so, because it probably wasn't easy to start a cocaine farm in Columbia back then and send it over. Hell, it's hard enough now to smuggle in a couple of kilos of coke hidden in your pant leg, believe me! (just kidding)
If gambling was illegal everywhere in the US, there's no question this would be too. But it's not, and many people go to Vegas or Atlantic City, etc. and have a good time, and no harm done. So there's no public outcry to shut these things down.
I would say though that just about every law I can think of involves morality (defrauding someone is morally bad, right?). I think the distinction you're looking for is laws that only affect those involved in the underlying conduct.
2. Posted by Joe Liu on November 17, 2005 @ 10:25 | Permalink
This is a fascinating issue, and as an IP professor, I see a connection to the ubiquity of file sharing prior to the Napster and Grokster decisions. (Yes, to the man with a hammer, everything looks like a nail ...)
I think it's less "if it's profitable, it can't be illegal" and more "if it's ubiquitous, it can't be illegal." A lot of folks get information about what is illegal, not from lawyers or law on the books, but from observed behavior. If I see a lot of people doing something without any apparent concern on the part of others, I will think either: (a) it is legal, or (b) even if illegal, no one cares much about it.
Moreover, these understandings can be reinforced by the actions of other institutional participants (i.e. advertising, celebrity endorsements, venture financing, support by credit card companies), again lending support to the idea that the practice is legal.
None of this is to excuse those who have access to legal advice (e.g. Jim Kelly), but it may explain how a widespread practice obtains an aura of legality, one that might be surprisingly hard to disturb. It also might suggest a need for stronger signals that an activity is illegal, to counteract this impression and reduce reliance.
3. Posted by Christine on November 17, 2005 @ 12:59 | Permalink
I think the analogy to file sharing is apt, particularly because I think (to some) that the logical conclusion that follows "everybody does it, so it can't be illegal" is "everybody does it, so it should not be illegal." That was definitely the tone of the piece, and I think part of the Grokster dialogue. It can't be illegal because everybody is doing it and you can't enforce the prohibition. We often hear that argument with why prohibition was repealed, although I'm sure the actual reasons are much more complex. So, should we de-criminalize activities that are ubiquitous and unstoppable? And, if we seem to do this sometimes (prohibition) then why not others (illegal drugs, sports gambling, prostitution).
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