DoJ set to extend Wire Act non-enforcement window

4 March 2019

The Department of Justice (DoJ) is set to extend the window in which it will not enforce its revised interpretation of the Wire Act, according to sources close to the matter.

Following the publication of the revised opinion on January 15, the DoJ announced a 90-day non-enforcement period, designed to give stakeholders time to ensure their operations were compliant with the legislation.

This was due to come to an end on April 15, but now looks to be extended by an additional 60 days. Following reports in the US media, sources close to discussions with the DoJ have confirmed to that they expect this extension to be announced in the coming days.

The revised opinion says that the Wire Act applies to all forms of gambling, and not just sports betting as stated by a 2011 interpretation of the legislation. This has left many private and state-owned operators unsure as to the legality of their businesses.

It remains unclear whether lotteries, which use servers in multiple locations, could face prosecution for allowing gambling-related data to cross state lines, and whether multi-state games such as Powerball are effectively outlawed as a result of the opinion.

Private operators, meanwhile, face uncertainty as a result of servers and operational services such as payment processing solutions transmitting data across state borders. The opinion may also impact tribal gaming, daily fantasy sports, and interstate initiatives such as 888’s multi-state online poker network linking Nevada, New Jersey and Delaware.

This has prompted a flurry of legal challenges against the DoJ’s decision to revise its interpretation. The Attorneys General of New Jersey and Pennsylvania have filed a suit against the Department, asking for assurances that the Department will not launch any enforcement action against licensed iGaming operators in either state.

New Jersey AG Gurbir Grewal has also filed a freedom of information request to ascertain whether lobbyists played a role in convincing the DoJ to change its stance on the Act.

The state of New Hampshire has also joined the fray, filing a suit on behalf of the state lottery with the blessing of Governor Chris Sununu and Attorney General Gordon MacDonald. It pushes for a declaratory judgement setting out the rights of all parties involved, and to an order vacating and setting aside the 2018 opinion. 

Trade association iDEA Growth and New Hampshire Lottery service provider NeoPollard Interactive have also filed supporting briefs in New Hampshire.