NeoPollard Interactive LLC (NPi), jointly owned by Pollard Banknote Limited and NeoGames S.A., is thrilled with the decision rendered by the First Circuit of the U.S. Court of Appeals on January 20, 2021 that unequivocally reconfirmed that the federal Wire Act is limited to sports betting and, therefore, does not pertain to state-run lotteries. This decision confirms the ruling of the U.S. District Court for the District of New Hampshire in 2019 that was appealed by the U.S. Federal Department of Justice. Overall, this decision is important for the U.S. lottery industry as a whole by alleviating concerns related to the legality of traditional retail or online lottery sales (also known as “iLottery”) which rely on the transmission of lottery data over the Internet.
The Wire Act subjects to criminal liability any person who “knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers.” In 2011, the Department of Justice’s Office of Legal Counsel (“OLC”) concluded that the Wire Act only applied to sports betting. Following that opinion, many lotteries began to offer non-sports gaming products over the Internet, reasonably relying on the OLC’s conclusions that their activities were lawful.
In January 2019, the OLC reversed that prior decision and released a new opinion concluding that the Wire Act extended beyond the sports-betting context to criminalize interstate transmissions of all bets or wagers—thereby overturning the conclusions of the 2011 opinion and threatening to shut down the burgeoning iLottery industry.
Working alongside the New Hampshire Lottery Commission (“New Hampshire Lottery”), NeoPollard Interactive and Pollard Banknote, the New Hampshire Lottery’s iLottery providers, immediately sought a declaratory judgment in federal court that the OLC’s new Wire Act interpretation was based on an incorrect reading of the statute. In June 2019, the U.S. District Court for the District of New Hampshire confirmed that the federal Wire Act applies only to sports-betting activities. The OLC appealed that decision.
In this latest judgement, the First Circuit affirmed the District Court’s June 2019 decision thus restoring the 2011 interpretation that limited the Wire Act to sports betting. By upholding the 2011 interpretation that the Wire Act applies only to bets or wagers on a sporting event or contest, this ruling safeguards the New Hampshire Lottery, NeoPollard Interactive and Pollard Banknote, specifically, and all other iLottery operators, generally, from the threat of unlawful prosecution.
In addition, and equally importantly for other state lotteries, any concerns about the pooling of bets or the transmission of wagers in connection with national and regional multi-state games such as Powerball® and Mega Millions, whether through traditional retail or online channels, have been completely eliminated.
“We are very happy with the recent judgement confirming, yet again, the 2011 interpretation of the Wire Act,” said Liz Siver, General Manager, NeoPollard Interactive. “This is a great success for the Lottery industry generally, and iLottery specifically, as it ensures that the sale of both iLottery games and national and regional multi-state games can continue to be strong contributors to lottery sales and the good causes that U.S. lotteries support. In terms of iLottery, we know firsthand the positive effect that these operations have had, not only on state resources, but on player experience as well. The current worldwide pandemic has amplified the importance of this new channel. We look forward to continuing to provide state-of-the-art iLottery products and strategies to lotteries with an increasing array of products within the digital landscape.”