FULL SPEED AHEAD FOR UIGEA REGS (Update)

14 November 2008

Implementation is January 19, 2009 with compliance by banks to start December 1st 2009

 

Ignoring pleas from interested parties that included the chairman of the House Financial Services Committee, Treasury officials have rammed the supporting regulations for the Unlawful Internet Gambling Enforcement Act through regardless, setting January 19th - the day before the official departure of the Bush administration - as the implementation date. The financial services industry, reluctantly pushed into enforcing the controversial regulations has until December 1st 2009 to comply with the requirement to halt all "illegal online gambling" financial transactions from players in the United States.

The 66 page rule, published mid-week by the Treasury, relies on financial institutions "performing due diligence" on corporate customers to ensure they're not processing online gambling transactions.

Although the regulations have still not delivered a clear and unambiguous definition of "illegal Internet gambling", a Treasury statement noted: "For purposes of the rule, unlawful Internet gambling generally would cover the making of a bet or wager that involves use of the Internet and that is unlawful under any applicable federal or state law in the jurisdiction where the bet or wager is initiated, received, or otherwise made."

Online players, internet freedom advocates, opposing politicians and the financial and banking industry itself have all criticised the regulations for a lack of precision, and there has been widespread condemnation of the additional burden it places on the US financial industry.

Nevada Representative Shelly Berkley, who has the support of the American Gaming Association in proposing an independent study of the Internet gambling phenomenon, commented: "The clock is ticking on President Bush's prohibitionist crusade against Internet gaming and that is clearly why these flawed regulations are being forced on the financial services industry at the very last minute."

Earlier this week, the chairman of the House Financial Services Committee, Rep. Barney Frank, D-Mass., had asked the Treasury not to move ahead with the regulations at this point, saying it would "burden the financial services industry at a time of economic crisis" and pointing out that a change of political administration that may have a different approach was imminent.

"This midnight rulemaking will tie the hands of the new administration, burden the financial services industry at a time of economic crisis and contradict the stated intent of the Financial Services Committee," Frank said.

The new regulation also failed to define unlawful Internet gambling, Frank said, "leaving it to each financial institution to reconcile conflicting state and federal laws, court decisions and inconsistent Department of Justice interpretations when determining whether to process a transaction. Furthermore, some of the information needed to make this determination would likely be unavailable to banks because customers or financial institutions in foreign jurisdictions will likely be unwilling or unable to provide it."

Frank has tried to overturn the UIGEA with a proposal for a regulated US Internet gambling industry, which was narrowly defeated in committee. He has more recently attempted to force Treasury drafters into more clarity, an initiative which claims that the law did not offer a clear definition of Internet gambling, instead referring to existing federal and state laws, which themselves provoke differing interpretations.

Banks and other financial institutions have complained they are being forced into a law enforcement role when Congress could not even define what conduct it was trying to prevent.

But not everyone was disturbed by the abrupt publication of the regulation in the waning days of the Bush administration. Arch-online gambling opponent and Alabama Republican Representative Spencer Bachus welcomed the publication of the new regulations in a statement in which he said: "No longer will the offshore gambling interests benefit from anyone turning any computer into a casino that is available every minute of the day." Bachus has exerted considerable and prolonged political effort over the years to ensure that American players would not have the choice of gambling online.

The rule issued this week to implement the 2006 UIGEA requires "U.S. financial firms that participate in designated payment systems to establish and implement policies that are reasonably designed to prevent payments to businesses in connection with unlawful Internet gambling," the Treasury Department said in its statement.

According to the Treasury Department, during the public comment period of the proposed UIGEA rule, "about 20 commenters, almost all of them depository institutions, noted that notwithstanding the Agencies' efforts to craft a reasonable rule, the proposed regulation would be unduly burdensome and would result in compliance costs greater than any offsetting societal benefits.

"Several of these commenters stated that the rule would adversely affect the competitiveness of the U.S. payments system, and that the Agencies should be cognizant of the potential for the Act and similar laws to cumulatively cause capital flight and erode the U.S. dollar's status as the world's reserve currency."

The Treasury Department says the comments were taken into consideration, but says it believes "that flexible, risk-based due diligence procedures at account opening, such as those set out in the final rule, present the best option for balancing these two interests."

The UIGEA itself is currently being challenged in the US 3rd Circuit Court of Appeals on "void for vagueness" grounds, by iMEGA (Interactive Media Entertainment & Gaming Association).