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Legal Perspective: You’re (Probably) Breaking the Law Playing Online Poker in the USA

PokerNews Mac VerStandig Op-Ed

Maurice "Mac" VerStandig is the managing partner of the VerStandig Law Firm, LLC, and focuses his practice on representing poker players, advantage gamblers, and other industry professionals in all manner of legal situations. He can be reached at 301-444-4600 or [email protected]

Disclaimer: The viewpoints expressed by the author do not necessarily reflect the opinions, viewpoints, and official policies of PokerNews.com.

There is not, in fact, one weird trick to having the government pay your mortgage; there is no one vegetable all gut doctors recommend be eaten daily; and there is most certainly not some prescient fail-safe stock insight from the lone man who predicted the Great Recession, the collapse of the USSR, and Appalachian State's upset of Michigan.

Nor, for that matter, is there one weird trick that makes the online poker games raided by the Department of Justice in 2011 magically legal today.

With COVID-19 came the closure of every licensed live poker room in the United States.

Some are now flirting with reopening, and while this is surely not an apt forum for the dispensation of medical advice, such setups strike many as unduly risky, while their shorthanded layouts strike others as strategically unpalatable.

Thus, online poker has experienced a marked and rapid renaissance, with nascent mobile poker apps enjoying surges in traffic, offshore websites becoming predictable topics du jour for Poker Twitter, and even the World Series of Poker – our community's mainstay summer camp destination forced into sabbatical – upping its online offerings.

Yet few of these options are actually legal, let alone reasonably protected from illicit mischief. And for many, those scarce lawful outposts are beyond the reach of respective state lines.

Let's start, though, with safe havens: WSOP.com, Borgatapoker.com, and other licensed poker sites in Pennsylvania, Nevada, New Jersey, and Delaware are safe, regulated, secure gaming outlets.

Do we all periodically bemoan their mishaps? Sure. Is the pro-to-rec player ratio often undesirable? Absolutely. But chasing a Circuit ring online is lawful and generally secure.

A few other operators in the United States do tow the legal line.

This column is not an endorsement of any site or group of sites, but suffice it to posit at least one big-name poker operator has a domestic operation riffing off various states' sweepstakes laws, and if that platform is available in your place of residence, you should be good to go.

It is normally easy to figure out which sites fall into this category – they tend to be the ones accepting credit cards, offering domestic mailing addresses, and inundating users with geofence checks.

Mac VerStandig
Poker lawyer Mac VerStandig playing at the WSOP.

The Gray Area

There is another lawful online poker option for some – but not all – American residents: unraked cyber "home" games.

In certain states, playing an unraked poker game for money is kosher. And if both you and your respective adversaries are all positioned in these states, you should be in the clear so long as no one is charging to run the game.

The problem, of course, is 50 states have 50 different laws, and not all are black and white on this point.

If staying on the right side of the law is important to you (and it ought to be), contact a lawyer before assuming the sanctity of your cyber club game. (I'll skip the shameless self-plug; plenty of attorneys less familiar with gaming laws than myself can give guidance on this point. Just make sure you're working with an actual attorney and not an out-of-work barista who took a few classes on ancient Greek law while chasing a philosophy degree in college.)

The Problem Areas

One of the frustrating urban legends borne of Black Friday is that playing online poker is perfectly legal; it is merely site operators and banks handling monetary transfers that are running afoul of the law. This is, in many cases, completely untrue.

"Every state has its own laws. And they range from obliquely prohibitive to occasionally permissive."

Yes, the Unlawful Internet Gambling Enforcement Act (here) – the ill-conceived federal statute that beget Black Friday – does limit much of its application to financial intermediaries. But that is not the only gaming-centric law in America by a longshot.

Every state has its own laws. And they range from obliquely prohibitive to occasionally permissive. D

o you live in Virginia? Section 18.2-326 of the state's code makes it a class 3 misdemeanor to play in a raked poker game. Whether the game is online, in an underground casino, or in your pal's basement matters not – if there is a rake or an administration fee, and you post a wager while sitting in the Commonwealth, you're breaking the law.

How about Minnesota? Section 609.755 of the state's statutory scheme renders it illegal to "make a bet."

Do you call Utah home? Section 76-10-1102 of the local criminal code makes it a class B misdemeanor to "participate in gambling… including any Internet or online gambling."

To be sure, these are not the only states that make it illegal to play in an unlicensed card game – plenty of others fall in line. And while some do seem to exempt participants from anti-gaming laws, that does not mean gaming winnings are not subject to forfeiture, your telling a buddy about a game will not give rise to a charge of promoting gambling, or an overzealous prosecutor will not one day theorize that participants are part of a conspiracy to put on an illegal poker game.

Oh, and if you are breaking a state anti-gaming law, you are also in hot water with the feds: Section 1955(d) of Title 18 of the United States Code makes clear that all money used in games illegal under state law can be seized by your cranky Uncle Sam.

But it's a Game of Skill

Poker is a game of skill – no argument here. And, yes, numerous states do have statutory schemes that seem to differentiate games of skill from games of chance and, ergo, place skill-based ventures beyond the reach of some anti-gaming laws.

Oddly enough, this is why it is often OK to wager $3 against a giant teddy bear while a carnival barker insults your spouse's unibrow. But do not rely on this distinction; it has fallen out of favor with numerous courts in recent years, and too many judges cannot look past the randomness that permits donks to scoop pots when a three-outer comes swimming up the river.

Moreover, some states are express that it matters not if the game is one of skill, chance, or antebellum French literary prowess: if you are staking money, you are violating the law.

What's the Realistic Outcome?

There has not been a notable online poker raid in the United States since Black Friday. Does that mean prosecutors stopped caring? Maybe. Does that mean we're due? Maybe.

But here's the thing: you aren't going to know a bust is coming until it happens – neither the FBI nor its state counterparts tend to post their to-do lists on Facebook.

"Illegal games lack the sort of judicial security upon which we all have grown accustomed to relying."

If there is a bust, does it seem likely large swaths of players will be serving prison sentences for playing $20 tournaments from their bedrooms? No.

But there is also no guarantee or assurance on this front – prosecutors can be a fickle group, circumstances vary wildly, and if it turns out a few people in that tournament were under surveillance for unrelated criminal conduct, you could end up in a lot hotter of water than you might think simply by virtue of being in the wrong place at the wrong time.

Moreover, illegal games lack the sort of judicial security upon which we all have grown accustomed to relying.

If a legal casino impounds your bankroll, you have legal recourse. If an online operator freezes your account and ghosts your customer service messages, you are largely on your own.

There was a time when poker was generally illegal and justice was meted out with ropes drawn from trees. As a community, we have come a long way from those Wild West days, and candidly, most of us are not nearly cut out to defend our honor in a duel.

The poker players of today tend to be better schooled in the ways of ketosis than marksmanship.

By playing online, you probably are not risking the integrity of your kneecaps. But you also are not being afforded the judicial safeguards that have pulled our community out of days of yore and into the modern era. And that, in many ways, is a bigger gamble than the draws we are all accustomed to chasing.

*Mac VerStandig is an unpaid contributor to PokerNews.com.

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