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Experts Predict Biden Could Void DOJ’s 2018 Wire Act Opinion; Good News for Online Poker

Joe Biden

President-elect Joe Biden is slated to take office this week and already one prestigious law firm is predicting it could be good news for online gaming advocates.

Lawyers from Dickinson Wright, a large law firm operation based in Michigan, which is set to launch online gaming operations, have told Gaming America magazine that they believe the new administration could rescind the Department of Justice’s (DOJ) 2018 opinion on the Wire Act.

Indeed, Online Poker Report previously reported that Biden even hinted as much during his campaign when he said: “I would reverse the White House opinion that was then reversed and overruled by the court. The court is correct. That should be the prevailing position.”

Back in 2011, the DOJ issued an opinion that the Wire Act, which was written in 1961 and prohibits interstate wagering, only applied to sports betting.

However, the Trump DOJ reversed course in 2018 when they said the Wire Act, in fact, applies to all forms of gambling including casino games, poker, lottery, etc. Rumors suggested that online gaming opponent and megadonor Sheldon Adelson, who recently passed away, was behind the reinterpretation by using his influence to push through the memo prior to William Barr, a state’s right advocate, took over the DOJ.

"This should provide a clear path for expanded use of internet communications for other gaming products such as intrastate online games."

Whatever the case, the new opinion threw a big monkey wrench into state plans for online lottery operations, so New Hampshire took it to court, as described in this PokerNews piece by gaming attorney Maurice “Mac” VerStandig. The New Hampshire Federal District Court ruled against the most recent interpretation, but the DOJ is appealing the decision.

Dickinson Wright’s Jeff Silver, Greg Gemiganani, and Patrick Sullivan believe it may all prove a moot point under Biden, who they expect will drop the appeal and void the 2018 opinion. As a result, things would revert back to the 2011 opinion, meaning the Wire Act would only apply to sports betting.

Here’s an excerpt of what they wrote exclusively in the January/February 2021 issue of Gaming America, which will be available both in print and online.

"This should provide a clear path for expanded use of internet communications for other gaming products such as intrastate online games, interstate online games (other than sports) where conducted by licensed gaming operators in each state, and expanded uses of interstate-wide area progressives by commercial and tribal gaming operators."

What Could It Mean?

If the current interpretation stands, it would not only be a big speedbump in the way of online poker expansion, it could potentially impact the current infrastructure as states like New Jersey and Nevada may have to dissolve their interstate compact. This is unlikely given the court ruling in New Hampshire, but it’s far from assured as anything could happen on appeal.

"With that reinterpretation, it became quite obvious that everything had to be on an intrastate basis, and that would probably be the biggest challenge," Pennsylvania Gaming Control Board Executive Director Kevin O’Toole previously said. "Not so much of a challenge but a modest delay, to establish an adequate server location within the commonwealth of Pennsylvania."

If the Biden administration steps in and drops the appeal, it means the Wire Act would only apply to sports betting, which in turn would mean online poker could continue as is. Furthermore, states like Michigan and Pennsylvania would have the option of joining the interstate fray, thus increasing the player pool on licensed sites considerably.

For fans of online poker, there’s no denying that Biden settling the Wire Act saga by dropping the appeal and rescinding the 2018 opinion would be a big win and help pave the way to a bright future.

*Lead image courtesy of commons.wikimedia.org.

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