Online Poker: Cyber-Debate Could Have Real World Effects

The federal government recently blocked U.S. gamblers from logging on to internet-based, offshore gambling sites. The move raised legal issues as players’ online “bankrolls” were essentially frozen – leaving many players with significant personal funds rendered inaccessible. Subsequently, government officials stated that, they had reached agreements with two of the larger sites and would “restore the companies’ domain names so they can return money to U.S. players.” As of today, however, American online poker players have not been able to cash-out.

The issue of online gaming has stretched legal concepts to the breaking point over the years. Traditional legal theory of jurisdiction struggles in the face of a casino located in “cyberspace.” The debate has raged over whether the “casino” should be governed by the laws of where the player is when he logs on, where the casino servers are, or where the domain name is registered?

Cyberspace aside, there is the threshold issue of whether online poker even illegal under federal law. Certainly Attorney General Eric Holder thinks it is, but former U.S. Senator and current chairman of the Poker Players Alliance, Alphonse D’Amato thinks not. Even more ironic is that the nation’s capital is poised to become the first jurisdiction to expressly legalize online poker.

In defending the rights of poker players to feed the online pot, D’Amato raises an interesting distinction as to why poker should not be considered gambling. He makes the argument that gambling is technically the wagering on an event of mere chance while poker, rather than a game of chance, is a game of skill. As many common law jurisdictions traditionally held wagering contracts unenforceable as malum prohibitum (unlawful under statute) rather than malum in se (intrinsically evil), if D’Amato’s theory of poker as a “game of skill” gains acceptance, soon that I.O.U. a poker player throws into the pot at the weekly poker game might be legally recoverable if the notemaker turns “welcher.” If that occurs, it would represent the greatest instance to date of cyberspace’s influence on the law of the “real world.”