by Elizabeth Lewis*
The Federal Wire Act prohibits the use of any “wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest.” While, in practice, this law has been sparsely used to prosecute illegal betting operations that cross state or national lines, a recent wave of states legalizing online gambling has brought to light the Act’s potential applicability to all federally controlled wires, even those within a single state. This Contribution argues that the Wire Act has the potential to reach nearly all online sports gambling, and, given the clear trend towards state legalization, should be revised either to explicitly exempt gambling legalized by states, or, conversely, should be limited to apply only to illegal offshore gambling operations, which may be more difficult for states themselves to regulate.
In 1961, Congress, prompted by then-U.S. Attorney General Robert F. Kennedy, passed the Wire Act as part of an omnibus crime bill intended to fight rampant organized crime in the United States.1 The Wire Act specifically sought to prevent the use of federal wires by crime syndicates, like the American Mafia, who used illegal gambling to raise revenue and launder money.2 Despite this targeted purpose, the Wire Act was written broadly to criminalize the use of any “wire communication facility” for the transmission of betting information, with no corresponding requirement that the gambling be connected to organized criminal activity.3 This sweeping language was then subject to only a limited carve-out in subsection b of the Act (the “Safe Harbor Provision”), which exempts the transmission of “information assisting in the placing of bets,” notably not bets themselves, and only where such information was transmitted “from a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal.”4 While the Act’s potentially broad mandate was construed narrowly by the First Circuit in New Hampshire Lottery Commission v. Rosen to encompass only sports betting, and not other forms of iGaming or online lotteries,5 the Act’s language still presents a significant barrier to the rapidly growing online sports gambling industry.6
Although courts, while assuming that the Act applies only to transmissions that cross state or national lines, have noted that a violation of the Act turns on state law,7 neither the statutory text nor the legislative history makes such a distinction between interstate and intrastate transmissions outside of the limited exceptions in the Safe Harbor Provision.8 As noted above, under the Provision, the transmission of information assisting in the placement of bets is permitted so long as the information is both sent and received in a state where sports gambling is legal.9 However, neither provision of the Act makes such distinction when the violating transmission involves bets themselves.10 Thus, the text of the Wire Act could conceivably be interpreted to criminalize any transmission of bets on wires of interstate commerce, including the internet, with no explicit protection for sports gambling activities currently legalized by some thirty states and the District of Columbia.11
However, this interpretation of the Act turns on an open question of law: whether the Wire Act applies to transmissions of bets or betting information on wires of interstate commerce within a single state. In other words, the question is whether it would be in violation of the Wire Act to use wires of interstate commerce, e.g., telephone wires or the internet, to place a bet within the geographic boundaries of a single state rather than between two people in different states where the transmission would necessarily cross state lines. This Contribution argues that this reading of the statute is possible given the statute’s plain language and ultimately advocates for a change in the law to prevent future federal interference in a largely state-run industry.
Although the applicability of the Wire Act to purely intrastate transmissions is an unsettled question, the federal government’s sweeping Commerce Clause power provides a central hook for any government agency or wily prosecutor hoping to extend the Wire Act to intrastate betting activities. Since the early 1900s, courts have interpreted Congress’s ability to regulate facilities “of interstate commerce” to include regulation of their intrastate uses.12 Since that time Congress’s power has only broadened, reaching a variety of acts carried out within a single state that involve the use of instrumentalities of interstate commerce such as telephone wires or the internet.13
While the understanding that Congress has the authority to reach such intrastate transmissions does not necessarily imply that Congress intended to do so in the Wire Act, judicial interpretations of analogous statutes, passed as part of the same omnibus crime bill, add support to such a reading. The Travel Act,14 enacted with the Wire Act as part of a package of statutes intended to curb illegal activities involving facilities of interstate commerce, has been consistently interpreted to require only the use of a facility of interstate commerce even if that use occurred solely within a single state.15 Such a reading is in line with both Supreme Court precedent concerning Commerce Clause authority and lower courts’ applications of the Wire Act specifically. In New York v. FERC, the Supreme Court found that “transmissions on the interconnected national grids constitute transmissions in interstate commerce” when analyzing federal authority under the Federal Power Act.16 Lower courts have applied the Wire Act similarly and found that the key nexus of the Act is the use of interstate wire facilities, not any actual interstate movement or transmission.17 This precedent in conjunction with the broad policy goal of assisting states in the enforcement of their gambling laws and preventing organized crime18 provide strong support for an interpretation of the Act that reaches as broadly as the Commerce Clause allows. In such cases, the Wire Act would provide a secondary authority under which to charge illegal sports gambling should state penalties prove too weak or otherwise ineffective.19
Nevertheless, there are compelling arguments against such a reading of the Wire Act based on the statute’s text and legislative history. For one, courts applying the Wire Act have consistently assumed without deciding that a Wire Act violation requires interstate movement as an element of the crime based on the phrase “transmission in interstate or foreign commerce.”20 Furthermore, the Department of Justice (“DOJ”) explicitly addressed the Wire Act’s applicability to intrastate transmissions in a 2011 memorandum, stating that “Congress presumably intended all the prohibitions in the Wire Act . . . to be limited to interstate or foreign (as opposed to intrastate) wire communications.”21 While the DOJ’s statements are not binding on courts, they lend additional credence to the widely-held assumption that the Wire Act applies only to transmissions that cross state or national lines. Finally, the statute’s legislative history and purpose could dissuade a court from holding that the Act applies to intrastate transmissions. For one, applying the Act to transmissions within a single state would do little to combat organized crime, although straying from that purpose has not always concerned courts in the past.22 And, second, applying the Act to transmissions within a single state would only marginally further the goal of “assisting states in the enforcement of their gambling laws” given that states where gambling is illegal are able to prosecute offenses within their borders under their own statutes.23 Instead, as discussed further below, such an extension of federal power may prove to be redundant of state laws,24 or could be used to usurp state authority over sports gambling.25 Thus, a judge reluctant to disrupt the status quo and cautious of the balance of power between states and the federal government may prefer to require interstate movement as an element of the Act despite the text’s broad language.
Notwithstanding contrary arguments, the Wire Act’s applicability to intrastate transmissions remains a close question of law that could vary depending on the court addressing the issue. Were a judge to find that purely intrastate transmissions of bets are within the scope of the Act, the next logical conclusion may be to find that the Wire Act federally bars all online sports gambling, leaving only information assisting in the placement of bets exempted by the Safe Harbor Provision.26 While this result may be somewhat obscured by the Act’s convoluted and arcane language,27 the Wire Act could still become a tool for a shrewd prosecutor, judge, or government agency to end the burgeoning online sports gambling industry without further authorization from Congress.
To best avoid any potential for federal criminalization of online sports betting, whether it be through judicial fiat or DOJ rulemaking, the Wire Act should be revised either (1) to explicitly carve out bets themselves where legal under state law or (2) to prohibit only bets in “foreign” commerce, which may be more difficult for states to regulate and prosecute. The several states have demonstrated their ability to competently regulate illegal bets placed or received within their borders,28 making the Wire Act a largely redundant tool when it comes to violations of state law. Much like other areas of conflict between state and federal law, such as the decriminalization of marijuana or even legalized prostitution, the federal law often has little practical effect in states where the activity has been legalized but remains an ever-present threat should the federal executive or judiciary choose to target budding commercial activities currently regulated under state law.29 While a federal position criminalizing online sports gambling remains remote, the Professional and Amateur Sports Protection Act of 1992 (“PAPSA”),30 which essentially outlawed sports betting nationwide before being overturned on anti-commandeering grounds by the Supreme Court in Murphy v. NCAA, indicates that such action is not as impossible as one may think.31
Thus, although such drastic action remains only a remote possibility, the Federal Wire Act should be amended to explicitly foreclose application to purely intrastate gambling and carve out the transmission of bets themselves in the Safe Harbor Provision. Such a result would bring much-needed clarity and stability to the rapidly growing sports gambling industry, allowing betting legalized by states to flourish without the threat of federal prosecution.
* Elizabeth Lewis is a J.D. Candidate (2023) at New York University School of Law. This Contribution arose from the problem presented at the 2022 Frank A. Schreck Gaming Law Moot Court Competition. The question presented asked whether the Federal Wire Act barred the intrastate transmission of bets made on wires of interstate commerce. This Contribution represents a combination of arguments made for both sides and exposes the contradictions and problems inherent in applying a somewhat archaic federal statute to the modern state-run online sports gambling industry. The views expressed herein do not necessarily reflect the views of the author.
1. See H.R. Rep. No. 87-967 (1961) (explaining the Wire Act’s purpose to “assist the various States and the District of Columbia in the enforcement of their laws pertaining to gambling, bookmaking, and like offenses and to aid in the suppression of organized gambling activities”); see also Michelle Minton, The Original Intent of the Wire Act and Its Implications for State-Based Legalization of Internet Gambling, 29 Univ. of Nev. Las Vegas Ctr. for Gaming Rsch. Occasional Paper Series, Sept. 14, 2014, at 1.
2. See Minton, supra note 1 (describing the 1961 passage of the Wire Act as a “package of bills” intended to “get at the heart of mafia organizations: their money”).
3. 18 U.S.C. § 1084(a) (“Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined under this title or imprisoned not more than two years, or both.”).
4. 18 U.S.C. § 1084(b). The Safe Harbor also contains an exception for the transmission of betting information “for use in news reporting of sporting events or contests.” Id.
5. N.H. Lottery Comm’n v. Rosen, 986 F.3d 38, 45 (1st Cir. 2021) (holding that the Wire Act did not apply to the many government-run lottery programs implicated in the case, nor did it apply to similar forms of internet-based gaming that did not involve betting on sports).
6. While at the time of the Act’s passage, the “wire communication facilit[ies]” at issue were mainly telephone wires, the Act has since been interpreted to apply to bets placed over the internet, thus exposing the vast majority of modern sports betting activity to federal regulation. See, e.g., United States v. Lyons, 740 F.3d 702, 716 (1st Cir. 2014) (holding that the Wire Act applies to the internet as a facility of interstate commerce).
7. See Lyons, 740 F.3d at 713 (noting that the Wire Act does not prohibit lawful intrastate gambling); United States. v. Synodinos, 218 F. Supp. 479, 481 (D. Utah 1963) (“It seems self-evident that an essential ingredient of the offense is a communication from one state into or through another over the wire facility.”); Sagansky v. United States, 358 F.2d 195, 199 n.4 (1st Cir. 1966) (noting that there was “sufficient evidence” to show that the defendant knew they were accepting a call from another state thereby satisfying the element of interstate movement).
8. See 18 U.S.C. § 1084(a) (creating a blanket prohibition on the transmission of bets in “interstate or foreign commerce” on “wire communication facilities” without specifying whether the transmission must cross state or national lines).
9. 18 U.S.C. § 1084(b).
10. Id. (“Nothing in this section shall be construed to prevent the transmission in interstate or foreign commerce of information for use in news reporting of sporting events or contests, or for the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal.” (emphasis added)). See also Lyons, 740 F.3d at 713 (“[T]he safe harbor provision only applies to the transmission of ‘information assisting in the placing of bets.’ The safe harbor provision does not exempt from liability the interstate transmission of bets themselves.” (citing United States v. McDonough, 835 F.2d 1103, 1104–05 (5th Cir. 1988); United States v. Bala, 489 F.3d 334, 342 (8th Cir. 2007)).
11. See Ward Williams, Sports Betting Laws by State, Investopedia (Aug. 15, 2022), https://www.investopedia.com/sports-betting-laws-by-state-5219064.
12. See Hous., E. & W. T. R. Co. v. United States, 234 U.S. 342, 351 (1914) (upholding congressional regulation of intrastate train lines as instrumentalities of interstate commerce).
13. See e.g., United States v. Lopez, 514 U.S. 549, 558 (1995) (“Congress is empowered to regulate and protect the instrumentalities of interstate commerce . . . even though the threat may come only from intrastate activities.”); United States v. MacEwan, 445 F.3d 237, 243–46 (3d Cir. 2006) (holding that the mere use of the internet satisfied a federal child pornography statute’s interstate commerce requirement); United States v. Richeson, 338 F.3d 653, 660 (7th Cir. 2003) (“[I]t is sufficient that the defendant used an interstate commerce facility in an intra state [sic] fashion.”); United States v. Marek, 238 F.3d 310, 321 (5th Cir. 2001) (interpreting the Wire Act to find that the phrase “in interstate or foreign commerce” applies to the “facility,” and not the “use” of such facility in an interstate fashion).
14. 18 U.S.C. § 1952.
15. See United States v. Nader, 542 F.3d 713, 722 (9th Cir. 2008) (concluding that intrastate telephone calls made in furtherance of an intrastate prostitution business violated the Travel Act because telephones were a “facility in interstate or foreign commerce”); United States v. Baker, 82 F.3d 273, 275 (8th Cir. 1996) (upholding the applicability of the Travel Act to purely intrastate ATM use). See also the Murder-For-Hire Statute, which criminalizes the use of interstate wire facilities to aid in the commission of murder. 18 U.S.C. § 1958 (1984). As with the Travel Act, circuit courts, including the Second Circuit in United States v. Perez, 414 F.3d 302, 305 (2d Cir. 2005), and the Seventh Circuit in Richeson, 338 F.3d at 660, consistently find any use of a telephone sufficient to support a conviction, without need to demonstrate interstate movement as a separate element of the crime.
16. 535 U.S. 1, 16 (2002) (interpreting the Federal Power Act, 16 U.S.C. § 824, to “unambiguously” grant the Federal Energy Regulatory Commission the authority to regulate purely intrastate transmissions of electric energy).
17. See e.g., United States v. McDonough, 835 F.2d 1103, 1104 (5th Cir. 1988) (noting that the Wire Act “appears as part of an independent federal policy aimed at those who would, in furtherance of any gambling activity, employ any means within direct federal control” (emphasis added)); Sagansky v. United States, 358 F.2d 195, 200 (1st Cir. 1966) (“[Section] 1084(a) does not punish the mere transmission of bets or wagers, but rather the ‘use’ of interstate wire communication facilities for their transmission.”).
18. See H.R. Rep. No. 87-967 (1961) (“The purpose of the bill is to assist the various States and the District of Columbia in the enforcement of their laws pertaining to gambling, bookmaking, and like offenses.”).
19. See Keith C. Miller, Sports Betting Integrity at Risk: The Role of the Wire Act, 61 Santa Clara L. Rev. 247, 268 (2020) (“[The Wire Act] gave the states a powerful ally in their fight against organized crime that operated across state lines, with federal investigative and law enforcement resources playing an essential role.”).
20. See, for example, Sagansky, 358 F.2d at 200, in which the court took pains to establish that, although the defendant may not have known precisely which state a call to place a bet was coming from, there was sufficient evidence to show that the defendant knew he was accepting a long-distance call from another state, thereby knowingly violating the act. See also Lyons, 740 F.3d at 713 (noting that “the Wire Act prohibits interstate gambling without criminalizing lawful intrastate gambling”).
21. Dep’t of Just., Opinion Letter on Whether Proposals by Ill. and N.Y. to Use the Internet to Sell Lottery Tickets Violate the Wire Act 1, 7 (Sept. 20, 2011). The DOJ memorandum was authored to clarify the department’s view of the Act’s applicability to state-run lotteries, like the one at issue in N.H. Lottery Comm’n v. Rosen, 986 F.3d 38 (1st Cir. 2021). However, the Department took the time to clarify their understanding of the Act’s scope, perhaps out of concern that prosecutors would charge intrastate gambling on wires of interstate commerce as violations of the Act.
22. See, e.g., United States v. Corrar, 512 F. Supp. 2d 1280, 1286 (N.D. Ga. 2007) (“That the United States has often used the Wire Act to prosecute bookmakers does not estop the Government from bringing charges against other persons whose conduct the Act criminalizes.”)
23. H.R. Rep. No. 87-967.
24. Currently only Alabama, Alaska, Idaho, Kentucky, Maine, South Carolina, Texas, Utah, and Vermont have no prohibitions on sports betting with no apparent plans to do so in the future. See American Gaming Association Interactive Map: Sports Betting in the U.S. https://www.americangaming.org/research/state-gaming-map/ (last visited Nov. 16, 2022).
25. See, e.g., NCAA v. Governor of New Jersey, 730 F.3d 208, 236 (3d Cir. 2013) (finding that New Jersey law conflicted with federal sports gambling policy under the now overturned Professional and Amateur Sports Protection Act (PAPSA), 28 U.S.C. § 3701, and was preempted by federal law).
26. 18 U.S.C. § 1084(a).
27. See Anthony Cabot, The Absence of a Comprehensive Federal Policy Toward Internet and Sports Wagering and a Proposal for Change, 17 Vill. Sports & Ent. L.J. 271, 282 (2010) (“The Wire Act, in its entirety, reads poorly and in parts, the Act is nearly incomprehensible.”)
28. See e.g., People v. Perez, 848 N.Y.S.2d 525, 526 (Sup. Ct., Bronx County 2007) (upholding a New York State prosecution of an illegal gambling enterprise); State ex rel. Tyson v. Ted’s Game Enters., 893 So. 2d 376, 381 (Ala. 2004) (affirming a judgment that gaming machines violated the state’s criminal gambling statutes and upholding their seizure by state law enforcement officials); Baxter v. State, 66 S.W.3d 494, 496 (Tex. App. 2001) (upholding defendant’s conviction and criminal sentencing for violation of the Texas anti-gambling statute).
29. This is particularly true given the emergence of more recent federal laws regulating online gaming activity, particularly the Unlawful Internet Gambling Enforcement Act of 2006, 31 U.S.C. § 5361, which regulates the receipt of payments generated by unlawful gaming activity.
30. 28 U.S.C. § 3702. PAPSA effectively outlawed sports betting nationwide, making it unlawful for “a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact,” or for “a person to sponsor, operate, advertise, or promote, pursuant to the law or compact of a governmental entity,” a variety of sports betting activities.
31. 138 S. Ct. 1461, 1478 (2018) (overturning PAPSA on anti-commandeering grounds, finding that the statute purported to instruct state legislatures on “what they may and may not do”).