US government officials were given 270 days to produce regulations supporting the Unlawful Internet Gambling Enforcement Act when it was passed by Congress late last year. And after weeks of 'will he, won't he' speculation, President George Bush signed the unpopular legislation into law on October 13, starting a train of business events that cost international companies billions of dollars and created untold hardship for employees and investors.
The UIGEA, which seeks to ban financial transactions with online gambling companies, entered a new phase Monday as government tried to stave off determined legal attacks on the law by the Internet Media Entertainment & Gaming Association (iMEGA).
Way over their deadline (see previous InfoPowa reports) US Treasury and Justice officials finally got around to publishing the 52 pages of regulations that enforce the law....but only as a proposal on which comments are invited before December 12, so it would appear that practical implementation will not take place for some time yet.
Importantly, the rules govern only those that are participants in a designated payment system or are financial transaction providers. An end-user or customer is not defined as a participant and is therefore not covered by the proposed rules.
Certain restricted transactions will be exempt from regulation if the government determines that "it is not reasonably practical to identify and block, or otherwise prevent or prohibit the acceptance of such transactions." For instance the proposed rules exempt all participants in the ACH (automated clearing house), check collection systems, and wire transfer systems, except the beneficiary's bank, or the bank acting on direct behalf of an illegal gambling business.
There will be no master list of unlawful internet gaming businesses...at least not immediately. While government has stated some of the benefits to participants by creating such a list, there are problems of cost, accuracy issues and liabilities associated with its creation. The time to accurately research and interpret all of the state, federal, and tribal gaming laws was cited as a major impediment.
The proposed regulations appear to stop short of requiring U.S. banks to block cheques their customers make to online casinos, but require banks to halt debit and credit card payments. It also bars US bank customers such as online casinos from receiving Internet gambling proceeds.
The Treasury Department and the Federal Reserve require that bank policies and procedures that are "....reasonably designed to prevent payments being made to gambling businesses in connection with unlawful Internet gambling," lie at the heart of the enforcement.
The proposed rule seeks to implement the Unlawful Internet Gambling Enforcement Act, prohibiting payments made for 'illegal gambling' through U.S.-based financial institutions, including payments made via credit cards, electronic funds transfers and checks.
The proposal gives examples of the policies and procedures the financial institutions should put in place, However, it doesn't spell out what illegal gambling activities are, because the act relies on underlying federal and state laws to determine those issues.
For example, under the proposed rule, credit-card companies and money-transmitting businesses are expected to put procedures into place to monitor and analyse payment patterns of individuals to detect suspicious activity.
Initial reaction from banking industry officials seemed to be that regulators had addressed their biggest concern about the new law. The enforcement agencies concluded it was "not reasonably practical" for the banks to identify and block customers from sending cheques and making some other types of transfers.
"It looks like they took a very practical and pragmatic approach. They did not ask us to do the impossible," said Steve Kenneally, a spokesman for America's Community Bankers.
The proposed regulations were immediately criticised by one gambling industry group, the Poker Players Alliance.
"Deputizing private U.S. financial institutions to determine what are lawful and unlawful transactions will lead to the monitoring and blocking of the personal and lawful financial transactions of many of their customers who wish to play games of skill, like poker, on the Internet," the Alliance said.
"Poker players, the American banking community, and anyone who values Internet and personal freedoms should be troubled by this intrusive rule. Deputizing private U.S. financial institutions to determine what are lawful and unlawful transactions will lead to the monitoring and blocking of the personal and lawful financial transactions of many of their customers who wish to play games of skill, like poker, on the internet. This seems more like the actions of Iran than the USA. We are hopeful that sensibility will prevail before these rules are finalized," said PPA Chairman, former U.S. Senator Alfonse D'Amato.
"Congress should act immediately to pass legislation which will effectively regulate Internet poker and provide the proper safeguards to prevent minors from participating in Internet gaming, preserve states' rights and ensure privacy and security of online transactions," he added.
The president of iMEGA, Edward J. Leyden, commented on the proposed regulations, saying:
"In its ongoing lawsuit in the U.S. District Court for the District of New Jersey, iMEGA has pointed to the unconstitutional, chilling effect that the Unlawful Internet Gambling Enforcement Act (UIGEA) of 2006 has already imposed on all of our digital civil rights by stifling beneficial innovation of the Internet and impeding our otherwise content-neutral financial system.
"The proposed regulations jointly promulgated today by the Federal Reserve Board of Governors and the Department of the Treasury would, if anything, aggravate these already intolerable circumstances.
"The regulations which are proposed under UIGEA continue a trend to regulate our Internet freedoms by passing the responsibility to define legal and illegal purposes behind a web-based financial transaction on to neutral third parties who then become victims of the system. In this case the victims caught between the government’s criminal punishment and ill-defined regulations are the payment system providers – credit card companies, banks, third party payment clearing houses.
"The regulations, while they are supposed to provide for a system which identifies legal transactions between persons who are allowed to enjoy Interactive gaming, instead virtually condemn the system to complete elimination because of the payment system providers’ risk of criminal penalties and injunction against further financial transactions if they guess wrong. There are no standards in the proposed UIGEA regulations which allow companies or individuals to safely navigate the inconsistent laws or ever-changing web business environment.
"We believe that our government can--and must do better--if the Internet is be continue to be the engine for growth and prosperity for all of us. That being so, iMEGA is confident that the important and fundamental rights for which we are fighting in federal court in New Jersey will be vindicated."
You may read the full release here http://www.treas.gov/press/releases/reports/noticeofproposedrule.pdf