The question of jurisdiction never used to be an issue where gambling is concerned, for most of recorded history at least. Gambling used to always take place in a physical location, and questions of whether it was legal or not to partake in it may not have always been clear, but what law applied to it always was.
So it always depended on whether the gambling was legal or not in the location where it occurred. With online gambling though, where the gambling occurred and what laws apply to it is anything but clear.
Of course if you ask U.S. law enforcement officials, at both the state and federal level, they will claim it occurs both at the player’s and the server’s end, but things are not so simple, as we’ve already discussed in the article outlining the differences between land based and online gambling.
This distinction ends up mattering a lot though and if the gambling is decided to occur in the location where the bet was placed, then the laws of the country where the servers are located would apply, and the laws where the bet was initiated would not even be relevant.
That aspect of online gambling remains at least somewhat muddy, but what isn’t muddy at all is the reach of the U.S. government beyond its shores. They don’t just want to allege that the players who place online bets in the U.S. are subject to U.S. law, they also want to claim that foreign operators are as well.
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From The Sublime to the Ridiculous
Claiming that bets made online are subject to U.S. law is one thing, and that’s actually a fairly reasonable legal position to take, and arguments can be made on both sides here. What this really comes down to by the way is interpreting state law to see if it may apply or not to online gambling, and one of the issues is if the activity of online gambling fit’s the law.
Some assume that all gambling fits, some assume that online gambling doesn’t because it isn’t mentioned explicitly, although the truth may lie somewhere in between.
Whether someone is under the jurisdiction of a certain country like the United States is not so difficult to decide. You do have to be physically located within the country. Now there are extradition treaties in place to seek to move someone who has committed an offense in one country and leaves, to have them returned to face trial, but such extraditions always require the accused to commit the alleged crime while in the country.
So if you are located in Antigua for instance, and it is legal for you to offer online gambling there, you are subject to the laws of Antigua, not other countries. It may or may not be legal to gamble online elsewhere, or for companies located in other countries to offer online gambling, but that doesn’t matter a bit.
This should be very obvious, but it has not stopped American law enforcement officials from actually charging foreign nationals with breaking American law without ever even setting foot in their country.
What’s even more shocking is that in some cases the American courts have even obtained convictions here, in cases where the accused has come to the US to visit and subsequently were arrested.
Of course these people have to be foolish enough to be on US soil for this to be possible, as you could never obtain extradition for these bogus crimes, but this does go to show that we cannot always count on the courts to exercise proper legal judgment, even when a conviction would require a bastardized interpretation of legal jurisdiction, as these cases clearly have.
Regardless, it is absurd to attempt to maintain that those who offer gambling in countries where it is fully legal and who aren’t in any way subject to American law anyway can nonetheless be subject to it. Since a few people have been charged, foreign nationals who may be subject to this persecution have been much more cautious though.
The Role of the Internet In Online Gambling Jurisdiction
What jurisdiction is the internet under? The interesting thing about this is that cyberspace doesn’t really fall under any jurisdiction. It has served to create a good deal of confusion though.
Let’s assume that it is illegal for Americans do gamble online. This really depends on what state you live in by the way but let’s say that a certain state where it is illegal has players wishing to play on your site.
So you own a site in another country where it is legal to do so and a government from your country even regulates your site. These American players visit your site by way of the internet and play there.
This part doesn’t depend on where the betting occurs by the way, although it does occur by way of the internet, where someone has hooked up their computer to it and your servers are linked to it as well, and they communicate.
You’ve done nothing illegal here, because it is legal for you to offer betting on the internet, and if people access it, well that’s what people do on the internet. It isn’t just legal for you to offer betting to people from certain areas, it’s legal period.
So a case can be made here for a conflict of laws, in this case the laws of the United States which at least try to claim that what you are doing contravenes their laws, and the laws of the country that you are in which permits it. In such a conflict this is always resolved by the law where the person resides, in spite of the internet. In fact you are in no way subject to American law whatsoever, or the laws of any other country.
So this needs to be kept in mind when authorities go after indictments of foreign operators, and although these activities have discouraged a number of online sites from participating in the American market, they do so for reasons other than the force of law.