“We have decided to extend that window an additional 60 days (through June 14, 2019),” Rosenstein wrote. “Providing this extension of time is an internal exercise of prosecutorial discretion and does not create a safe harbor for violations of the Wire Act.”
Of course, what exactly compliance means is still an open question.
So far, it’s mostly business as usual in states with legal online gambling. That’s unlikely to change until the DOJ crystallizes its new position on the Wire Act.
The extension could be a positive development or a negative one — or both.
The extension could signal efforts from the DOJ to walk back or limit the overall scope of the controversial opinion.
I still think the DOJ has left itself enough room to walk back here. A court case headed in the right direction for those opposing the new Wire Act opinion could provide additional motivation for the DOJ to reverse course in a face-saving way. https://t.co/tpB6cVjSsm
— Chris Grove (@OPReport) March 1, 2019
The case to which analyst Chris Grove is referring is the suit from the New Hampshire Lottery Commission, which is now being fast-tracked.
Further, new US Attorney General William Barr has been outspoken about federal overreach, and the new Wire Act opinion is a textbook case of the federal government trampling states’ rights. As such, Rosenstein may be leaving the particulars of enforcement to Barr.
The ambiguous decision — and an even more ambiguous enforcement memo — are already having an effect on the US online gambling industry.
The revised Wire Act opinion spooked the Pennsylvania Gaming Control Board enough that it informed licensees that all gaming servers must be located in the state. The board initially allowed servers to be located in other jurisdictions with legal online gambling.
And then there’s the World Series of Poker.
The WSOP has yet to decide if, as it did in 2018, it will let New Jersey customers participate in online bracelet events. The state began sharing online poker liquidity with Nevada (and Delaware) in 2018, which gave WSOP NJ players access to online bracelet events.
The revised Wire Act interpretation has put such interstate online poker in jeopardy.
Unless the NH case provides some clarity, postponement simply extends the uncertainty into June. So, rather than having a clear picture of what it can and can’t do in April, the WSOP may have to wait until June before it can decide on the eligibility of New Jersey customers.
The opinion is on shaky legal footing, and its origins really test its legitimacy. That said, it does exist, and a court challenge isn’t going to be a slam dunk, no matter how controversial it might be.
At the end of the day, unless the DOJ loses badly in court — or walks back the opinion of its own volition — this is a fight that will weave its way through the courts over a period of years. And until a final decision is rendered, uncertainty reigns supreme.