DOJ Throws in the Towel on Wire Act Interpretation, But Congressional Action May Loom

In our first WLF Legal Pulse post on this topic back in February 2019, we analyzed the December 2018 U.S. Department of Justice (“DOJ”) Office of Legal Counsel (“OLC”) legal opinion concerning the breadth of the federal Wire Act and noted the shock wave it sent through the Internet gambling industry.  OLC’s 2018 opinion reversed OLC’s long-time interpretation of the statute as prohibiting only interstate sports wagering, not all forms of gambling across state lines.  Almost immediately, the New Hampshire Lottery, believing that this reinterpretation would put it out of business, filed a lawsuit seeking a judicial declaration that OLC’s 2011 interpretation was indeed correct.  In that case, the district court sided with the New Hampshire Lottery, and on January 20, 2021, a unanimous panel of the U.S. Court of Appeals for the First Circuit agreed that the 2011 opinion was correct.  With DOJ’s time to appeal that decision having expired on June 21, the Department issued a statement last week that “the government is not planning to seek Supreme Court review of the First Circuit’s decision.”  With that, DOJ has effectively returned to its 2011 opinion that the Wire Act does not prohibit the use of the Internet for all forms of gambling.

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