The question of jurisdiction never used to be an issue where gambling is concerned, for most of recorded history at least. Gambling used to always take place in a physical location, and questions of whether it was legal or not to partake in it may not have always been clear, but what law applied to it always was.
So it always depended on whether the gambling was legal or not in the location where it occurred. With online gambling though, where the gambling occurred and what laws apply to it is anything but clear.
Of course if you ask U.S. law enforcement officials, at both the state and federal level, they will claim it occurs both at the player’s and the server’s end, but things are not so simple, as we’ve already discussed in the article outlining the differences between land based and online gambling.
This distinction ends up mattering a lot though and if the gambling is decided to occur in the location where the bet was placed, then the laws of the country where the servers are located would apply, and the laws where the bet was initiated would not even be relevant.
That aspect of online gambling remains at least somewhat muddy, but what isn’t muddy at all is the reach of the U.S. government beyond its shores. They don’t just want to allege that the players who place online bets in the U.S. are subject to U.S. law, they also want to claim that foreign operators are as well.
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From The Sublime to the Ridiculous
Asserting that online bets fall under U.S. law is quite one thing, and that’s actually a fairly reasonable legal position to adopt, and debates can be initiated on both sides here. What this really involves by the way is analyzing state law to see if it might apply or not to internet gambling, and among the issues is if the activity of online gambling complies with the law. I think more people need to understand this properly.
Some believe that all gambling complies, some assume that online gambling doesn’t because it isn’t mentioned explicitly, even though the truth might be somewhere in between.
If someone is under the rule of a certain region like the United States is not so tough to determine. You do need to be physically present within the area. Currently there are extradition treaties in place to attempt to transfer someone who has committed an offense in one region and leaves, to have them sent back to face trial, but such extraditions always mandate the accused to commit the alleged wrongdoing while in the region.
So if you are residing in Antigua for example, and it is lawful for you to provide online gambling there, you are governed by the laws of Antigua, not other places. It may or may not be legal to gamble on the internet elsewhere, or for organizations located in other places to offer online gambling, but that’s not important at all. The implications could be widespread for many operators.
This may be very evident, but it has not deterred American legal enforcement officials from actually prosecuting foreign nationals with violating American laws without ever even stepping foot in their country.
What’s even more startling is that in some instances the American courts have even secured convictions here, in cases where the accused has traveled to the US to visit and subsequently were apprehended.
Naturally these individuals have to be unwise enough to be on US land for this to be feasible, as you could never obtain extradition for these fabricated accusations, but this does demonstrate that we cannot always rely on the courts to apply correct legal judgment, even when a conviction would demand a distorted interpretation of legal jurisdiction, as these cases clearly have. This issue could cause further international tension.
Regardless, it is laughable to try to claim that those who offer gambling in countries where it is completely permissible and who aren’t in any way liable to American law anyway can nonetheless be liable to it. Since some individuals have been prosecuted, foreign nationals who may be subject to this harassment have been much more cautious though.
The Role of the Internet In Online Gambling Jurisdiction
What jurisdiction is the internet under? The interesting thing about this is that cyberspace doesn’t really fall under any jurisdiction. It has served to create a good deal of confusion though.
Let’s assume that it is illegal for Americans do gamble online. This really depends on what state you live in by the way but let’s say that a certain state where it is illegal has players wishing to play on your site.
So you own a site in another country where it is legal to do so and a government from your country even regulates your site. These American players visit your site by way of the internet and play there.
This part doesn’t depend on where the betting occurs by the way, although it does occur by way of the internet, where someone has hooked up their computer to it and your servers are linked to it as well, and they communicate.
You’ve done nothing illegal here, because it is legal for you to offer betting on the internet, and if people access it, well that’s what people do on the internet. It isn’t just legal for you to offer betting to people from certain areas, it’s legal period.
So a case can be made here for a conflict of laws, in this case the laws of the United States which at least try to claim that what you are doing contravenes their laws, and the laws of the country that you are in which permits it. In such a conflict this is always resolved by the law where the person resides, in spite of the internet. In fact you are in no way subject to American law whatsoever, or the laws of any other country.
So this needs to be kept in mind when authorities go after indictments of foreign operators, and although these activities have discouraged a number of online sites from participating in the American market, they do so for reasons other than the force of law.