Legal precedent for online gaming?

[CaptainK]

Below is an article taken from Yahoo's news service. The way I see it, the Judge is confirming that the internet operations are subject to the laws of the host country. How does this affect any attempt to prohibit US citizens from wagering at off-shore or UK online casinos or sports books, assuming it is legal in the host jurisdictions?
.........................................

SUNNYVALE, Calif. (Reuters) - A U.S. federal judge ruled Wednesday that Yahoo Inc (Nasdaq:YHOO - news) was not bound to comply with French laws governing Internet content, a decision which could have broad implications for international free speech rights in the Internet age.

U.S. District Court Judge Jeremy Fogel, weighing in on an international dispute over Yahoo auctions featuring Nazi memorabilia, said French court orders barring such auctions on U.S.-based Web sites would not be enforced.

``We are extremely happy about this,'' said Mary Catherine Worth, senior corporate counsel, International, for Yahoo, Inc.

``This has very broad implications for everyone, not only companies but also for individuals who operate Web pages here in the United States,'' Worth said.

``Judge Fogel's ruling holds that if you have a U.S.-based Web site, you are subject to U.S. law and you are protected by the First Amendment. Foreign court orders will not be enforced.''

The case, seen as a key test of the evolving rules governing national jurisdiction, free speech and online commerce, has led to repeated court hearings both in France and in the United States.

France had sought to bar Yahoo's auctions of Nazi items under broad French anti-hate speech laws, threatening the U.S.-based site with fines of as much as $13,000 per day unless it blocked French citizens' access to the items.

Yahoo protested, saying it ran a French auction site which abides by local laws but could not effectively block people in France from going to other country-specific sites to access the objectionable material.

The French court disagreed, pointing to technical experts who argued that IP-address tracking could spot more than 60 percent of French Internet surfers.

Yahoo ultimately agreed to yank the Nazi items from its worldwide auction system, a move which was followed by online auction site operator eBay Inc.

But Yahoo also asked Fogel to consider whether French laws could be enforced in the United States, noting that the list of items and content that could be found potentially offensive in different countries was huge.

Fogel, in his decision reached Wednesday, apparently agreed, extending U.S. guarantees of free speech rights to Internet sites seen across the world.

``Today the judge basically he said it was not consistent with the laws of the United States for another nation to regulate speech for a U.S. resident within the United States,'' Worth said.

[Hartley]

Interesting. Maybe this is a precedent that can be used by Jay Cohen in his appeal. After all that is exactly what he's been arguing - that since WSEX is an Antiguan website it is bound by the laws of Antigua NOT the laws of the United States.

Having said that I hope Yahoo does take down the Nazi memorabilia from their auctions.

[scott]

Yahoo auctions are not subject to 18 U.S.C. Section 1084.

[CaptainK]

<BLOCKQUOTE>quote:[/size]<HR>Originally posted by scott:
Yahoo auctions are not subject to 18 U.S.C. Section 1084.<HR></BLOCKQUOTE>

Can you elaborate please? Is this the Wire Act?

[JC]

Right on Hartley. That was only the first of several arguments I have consistently mader regarding legality.


The court said foreign laws can't apply to US based sites. If they are to be consistent don't they have to concede that US laws don't apply to foreign sites?

If not it is pure hypocrisy.

Yahoo, a US based site that offers it's services around the world. These services include information as well as e-commerce where money is exchanged. The French claim that Yahoo is in violation of French law.

An American court says France has no say over what happens on US sites.

How is this different from me. Substitute WSEX for Yahoo, Antigua for US, and US for France.

I will cut and paste and demonstrate.

WSEX, a ANTIGUAN based site that offers it's services around the world. These services include information as well as e-commerce where money is exchanged. The US claim that WSEX is in violation of US law.

An American court says US has no say over what happens on ANTIGUAN sites.

Am I going crazy???? This is totally analogous!!!!

How is this different? How hypocritical are they going to be and get away with it???


And yes, Title 18 Section 1084 is the wire act.

[auspice]

JC

I'm very much a layman re judicial matters so please accept this as a mere speculation/question.

It is my understanding that just about the only time the supreme court agrees to hear a case is when different findings are rendered
by different district courts on very similar fact cases.

Do you think this recent case finding will perhaps help in having your case heard by the supreme court?

Best Wishes with your case by the way...

[This message has been edited by auspice (edited 11-08-2001).]

[CaptainK]

JC, I was hoping you might comment on this post. Thanks. I agree with you entirely.

Hartley, I don't know much about the wire act, but I would have thought it related to domestic (or intrastate) telecommunications. Even if this is not the case, the logic still stands that if the Yahoo ruling is right - and I think we all agree that it is - then the US government has no right in passing laws that prevent its citizens from "virtually" going to other jurisdictions to legally gamble. I fail to see the difference.

The potential for hypocrisy here is mind boggling:

Other countries can't dictate what is and is not legal to US companies, but the US can dictate to foreign companies?

Gambling is ok provided the beneficiaries are US companies (and US government through taxes), but for foreign gambling entities and regulatory bodies it's not ok?

Unbelievable.

[Hartley]

The bottom line is that the laws have to apply to the country where the website is located because if the laws of every land were to be respected then the internet would fail to exist.

Think about it.

Afghanistan law (under the Taliban) states that women can not show skin. If the above decision by the courts didn't apply then all pictures of women on any site in the world would have to show women fully clothed up to their eyeballs because it is violating Afghanistan law, not to do so. And by nature of the internet anyone in Afghanistan could technically log into any U.S. based website provided they have internet access and know the URL.

Similarly I'm sure there are laws throughout the world that are violated some way or another by certain sites on the internet so technically they would all have to be shut down if the global laws applied rather than local laws.

It seems to me that the judgement definitely gives Jay some new life in his case. No doubt he's contacted his attorney about this ruling already [img]smile.gif[/img] .

[mjh218]

I have access to it so I figured I would post 18 U.S.C. Section 1084. Here it is!

§ 1084. Transmission of wagering information; penalties

(a) Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined under this title or imprisoned not more than two years, or both.

(b) Nothing in this section shall be construed to prevent the transmission in interstate or foreign commerce of information for use in news reporting of sporting events or contests, 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.

(c) Nothing contained in this section shall create immunity from criminal prosecution under any laws of any State.

(d) When any common carrier, subject to the jurisdiction of the Federal Communications Commission, is notified in writing by a Federal, State, or local law enforcement agency, acting within its jurisdiction, that any facility furnished by it is being used or will be used for the purpose of transmitting or receiving gambling information in interstate or foreign commerce in violation of Federal, State or local law, it shall discontinue or refuse, the leasing, furnishing, or maintaining of such facility, after reasonable notice to the subscriber, but no damages, penalty or forfeiture, civil or criminal, shall be found against any common carrier for any act done in compliance with any notice received from a law enforcement agency. Nothing in this section shall be deemed to prejudice the right of any person affected thereby to secure an appropriate determination, as otherwise provided by law, in a Federal court or in a State or local tribunal or agency, that such facility should not be discontinued or removed, or should be restored.

(e) As used in this section, the term 'State' means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a commonwealth, territory or possession of the United States

[Hartley]

mjh I'm not a lawyer, but it seems that it shouldn't matter. The courts have to determine which laws are more applicable in the case of a conflict. And IMO, International law should always supercede domestic law.

The courts have all but said with the Yahoo ruling that in the case of the internet, the only laws that are relevant are those that take place in the country where the website is located. And in the case of JC, the website is in Antigua so he should have been bound by Antiguan law, NOT U.S. law and the wire act should never have been considered.

No doubt some will argue that this being the case, what is stopping someone from shipping cocaine from Amsterdam to the U.S. and claiming that the U.S. has no jurisdiction because the transaction was made on an Amsterdam based website - a country where selling drugs is not illegal. The answer of course is that they don't have jurisdiction as far as the transaction goes. But once the physical product reaches the United States, then U.S. law would apply and the junkie can be arrested for possession of an illegal substance.

In the case of the Yahoo Auction it is not up to Yahoo to block the selling of the nazi paraphenalia (that isn't their concern). But it is up to the French public to respect the French laws. So if there is a law that states that posessing nazi parpahenalia is illegal in France then whoever buys this product should be arrested for posessing it once the product physically enters France.

It seems to me in the case of internet betting that the government's only recourse should be against the U.S. bettors, NOT the owner of an Antiguan bookmaking operation that is operating legally according to the laws of Antigua. But if the government is going to go after the bettors, they had better find a different law than the wire act, because that doesn't deal with the placing of bets, only with the bookmaking.

[PATTON]

<blockquote>quote:[/size]Originally posted by auspice:
JC

I'm very much a layman re judicial matters so please accept this as a mere speculation/question.

It is my understanding that just about the only time the supreme court agrees to hear a case is when different findings are rendered
by different district courts on very similar fact cases.

Do you think this recent case finding will perhaps help in having your case heard by the supreme court?

Best Wishes with your case by the way...

[This message has been edited by auspice (edited 11-08-2001).][/quote]

Auspice,

You are right, in general. The Supreme Court receives many thousands of appeals each year, and only agrees to hear a couple of hundred (in addition to those cases in which, under the Constitution, it has "original jurisdiction" and as the primary court must hear the case, like boundary disputes between states). Given its limited time, the Court will only hear cases with some importance.

Generally, this means cases involving areas of the law in which the different circuit courts of appeal (above the district courts) have ruled differently, creating a conflict. Obviously, it is important for everyone to be subject to the same rules throughout the US, so when courts of appeal disagree on a legal issue, there is a strong incentive for the Supreme Court to hear an appeal involving that area of law.

However, the Court may also decide to hear a case if the issue is important enough, regardless of whether a split exists among the circuits. Thus, if an important Constitutional right is at stake. Also, you probably noticed last Fall the Court was rather quick to take (and rule on) several appeals from decisions of the Florida Supreme Court involving a dispute between some guys named Bush and Gore. The Supreme Court could have declined to have heard the cases, and many thought it should have done so (for some reason, they were mainly Democrats).

That is why Jay must cast his appeal as having the potential to create an important precedent in the governance of the internet. Otherwise, the Court could well decline to hear the case. The Yahoo! case helps also by showing the 2d Circuit decision was perhaps in conflict with another circuit's reasoning in this area.

Hartley,

I do not agree with your blanket statement that "International law should always supercede domestic law." Taken to its logical extreme, we would have to dump our support of Israel in compliance with certain UN resolutions condemning it.

Certainly, the Constitution recognizes that treaties are, with the Constitution and federal law the supreme law of the land. But the wholesale surrender of sovereignty is not required by international law or the Constitution. We can of course agree to things, but they cannot be imposed from without.

In fact, at least in the tax area, when there is a conflict between the law and a treaty, the one that was passed later takes precedence. This drives our treaty partners wild at times, as they will strike a deal with us in a tax treaty and several years later Congress will pass a law taking away their benefit. These days Congress usually will in new legislation grandfather in existing treaties' provisions, but they do not have to.

[ 11-09-2001: Message edited by: PATTON ]</p>