Even if Internet gambling regulations were to satisfy the First Amendment and Commerce Clause challenges, they would not be useful if enforcement were impossible. Practically, enforcing a law violation that occurs on the Internet is difficult because the acts can be hard to trace and can take place overseas. There are rival theories concerning whether any law that regulates gambling on the Internet can be enforced. Those who endorse the legalization of all online wagering believe that any existing or future laws are, simply, a worthless formality. Others, however, believe that these regulations can be enforced with the same or superior effectiveness as any other law.
The primary manner in which defendants could avoid U.S. laws that regulate online gambling is by staying out of the United States. These defendants can simply stay overseas. Without the power of extradition there is no effective manner for U.S. authorities to enforce the law. Some Department of Justice officials apparently share this opinion. The department wrote in an analysis last year that the fact "that some form of
gambling is legal in virtually every state . . . diminishes our ability to persuade a foreign country that gambling must be vigorously combated." Further, some countries have chosen to legalize forms of online gambling. Therefore, even if U.S. authorities formed alliances with a group of countries, the Web site operators could simply flock to the one country in which the activity was legal.
Since it would appear that enforcing this type of law against the operator is impractical, U.S. officials might have to focus their enforcement efforts on the reception of the Web site, rather than the transmission. There are two clear options with this type of enforcement. First, officials could begin prosecuting the individual gambler. This option would, clearly, be unpopular with the majority of the public. In this situation, one
person could be convicted for the purchase of lottery tickets on the Internet while his neighbor could legally buy tickets at a local convenience store. This inconsistency was recognized by the Senate last year when they dropped a provision allowing for the prosecution of individual gamblers from the proposed Internet Gambling Prohibition Act. This provision was dropped following an evaluation by the Department of
Justice. A second option would be to force Internet Service Providers (ISP’s) to block access to gambling sites. These providers could avoid prosecution by blocking access to the sites or by showing that such acts were economically or technically impossible. Skeptics point to the ability for a Web site operator to switch servers and web addresses to avoid this type of enforcement.
The second way for a Web site operator to avoid prosecution is to hide their identity. Offshore gambling entities could use sophisticated encryption and stop using a credit card-based deposit system to hide themselves. In response to this argument, pro-regulation advocates have emphasized two points. Initially, Web sites cannot be established anonymously because of registration requirements. The operator must provide billing information as well as basic identification. Also, "the SEC, FTC, and state attorneys general offices have long been active in monitoring and investigating Internet . . . schemes." In other words, no matter how sophisticated the Internet becomes, law enforcement authorities can use the same technology to track the Web site users and operators.
Clearly, there are a number of problems with the enforcement of these types of laws. However, this is to be expected with a new technology like the Internet. Although Internet gambling regulations may not lead to the prosecution of all Web site operators because of the ability for overseas operation, the activity can be severely restricted by regulating the reception of Web sites and using modern technology to identify the
proprietors.
Taken from www.worldonlinegambling.com
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