I suspect the matter is more political than legal. Congress has the power to ban all gambling nationwide, but do they really want to do that? Would they get re-elected if they did?
The US federal government cannot regulate gambling transactions that don't cross state lines, due to the Commerce Clause in the US Constitution.
In the wake of the Supreme Court's recent decision in Gonzales v. Raich, I doubt this is true. Raich essentially held that the government could ban all trade & production of cannabis in California, even that activity which involved entirely homegrown plants which never crossed state lines, on the theory that if local growers could introduce cannabis to a local marketplace, it would impact the nationwide cannabis market, and thus have a substantial cross-state effect.
(As a side note, I don't like the government banning medical marijuana, but there is no question that Raich was correctly decided. The same theory is also why landmark civil rights legislation, such as the act which forbids whites-only lunch counters, also applies to lunch counters which only serve local clients. One of the unfortunate things about constitutional law is that you often have to take the bitter with the sweet.)
The case for allowing interstate gambling to be banned is bolstered by the WTO. As has been correctly noted above, the WTO does not have the power to "strike down" laws, per se. It does, however, have the power to allow trade sanctions so onerous that any reasonable government would repeal the offending law on their own initiative. Given this framework (which is an international framework largely outside of U.S. hands), the federal government could likely defend an intrastate gambling ban on the grounds that, by banning intrastate gambling, the government avoids onerous trade sanctions, which itself has a substantial effect on interstate commerce.
The SCA is a federal statute, passed by Congress & signed by the President. It applies only when the conditions specifically described in the statute are met. In this case, those conditions are access of stored communications "without authorization". The text of the statute also contains an exception, which says that even if stored communications were accessed w/o authorization, the statute does not apply if those communications are "readily acessible to the general public." According to the Eleventh Circuit, merely requiring the user to click a button saying they agree that they are not something does not prevent a site from being "readily accessible to the general public."
Contract law is hundreds of years old, based on the English common law, and modified somewhat by state legislatures. Under the common law of contracts, there are three elements to a contract:
1) An offer
2) An acceptance
3) Consideration (meaning that both parties agree to give something up)
Because contract law is governed by state law, it is rarely raised in federal courts, such as the Eleventh Circuit (there are exceptions, under something called "diversity jurisdiction" or "supplimental jurisdiction" but I imagine the readers of Slashdot don't want me to give them an entire semester's worth of Civil Procedure). When a contract claim is raised in the proper court, however, a contract will generally be deemed to exist if the three elements mentioned above exist.
Karearea~
A commenter on the linked to site left this remark about EULAs, which I believe is a correct statement of the law:
EULAs and the like are governed by contract law, which is a completely different ballgame than the SCA. Under contract law, an agreement is valid if one party offers something to another, the offer is accepted, and both parties agree to give something up.
In the context of a EULA, the text of the EULA is the offer, clicking on "I Agree" is the acceptance. That means that so long as the last requirement (both parties give something up) is met, that click-through agreements are valid for EULA purposes.
In short, this case only dealt with the meaning of a particular statute (the SCA). EULAs rely on contract law, which are a totally different area of the law. This decision should not effect EULAs.
If this case stands, I'm sure some state will try something like this (I wouldn't be surprised if they already have), but I doubt it would work.
Extreme Associates held that persons have a fundamental right to read materials of their own choice in the privacy of their own home. In order to overcome a fundamental right, the government must demonstrate 1) that the challenged law fulfills a compelling state interest, and; 2) that the challenged law is narrow tailored to uphold that interest, and only that interest.
While preventing AIDS and the like is undoubtedly a compelling interest, it would be impossible to argue that a broad anti-porn law which targets all persons, including those at no risk of STDs meets the narrowly tailored test.
That's not what this case says.
Laws prohibiting murder are passed under the "police power" which allows states to regulate in order to preserve the "health and safety" of individuals.
In other words, murder laws are health and safety laws, not morality laws.
crmartin: if you read the original article (i.e. click through the link), you will see that Miranda blamed Senators on both sides, Democrats, and his bosses.
expriest: maybe next time you can include that part of the quote in your writeup.
Slashdot Mirror
I suspect the matter is more political than legal. Congress has the power to ban all gambling nationwide, but do they really want to do that? Would they get re-elected if they did?
The US federal government cannot regulate gambling transactions that don't cross state lines, due to the Commerce Clause in the US Constitution.
In the wake of the Supreme Court's recent decision in Gonzales v. Raich, I doubt this is true. Raich essentially held that the government could ban all trade & production of cannabis in California, even that activity which involved entirely homegrown plants which never crossed state lines, on the theory that if local growers could introduce cannabis to a local marketplace, it would impact the nationwide cannabis market, and thus have a substantial cross-state effect.
(As a side note, I don't like the government banning medical marijuana, but there is no question that Raich was correctly decided. The same theory is also why landmark civil rights legislation, such as the act which forbids whites-only lunch counters, also applies to lunch counters which only serve local clients. One of the unfortunate things about constitutional law is that you often have to take the bitter with the sweet.)
The case for allowing interstate gambling to be banned is bolstered by the WTO. As has been correctly noted above, the WTO does not have the power to "strike down" laws, per se. It does, however, have the power to allow trade sanctions so onerous that any reasonable government would repeal the offending law on their own initiative. Given this framework (which is an international framework largely outside of U.S. hands), the federal government could likely defend an intrastate gambling ban on the grounds that, by banning intrastate gambling, the government avoids onerous trade sanctions, which itself has a substantial effect on interstate commerce.
The SCA is a federal statute, passed by Congress & signed by the President. It applies only when the conditions specifically described in the statute are met. In this case, those conditions are access of stored communications "without authorization". The text of the statute also contains an exception, which says that even if stored communications were accessed w/o authorization, the statute does not apply if those communications are "readily acessible to the general public." According to the Eleventh Circuit, merely requiring the user to click a button saying they agree that they are not something does not prevent a site from being "readily accessible to the general public." Contract law is hundreds of years old, based on the English common law, and modified somewhat by state legislatures. Under the common law of contracts, there are three elements to a contract: 1) An offer 2) An acceptance 3) Consideration (meaning that both parties agree to give something up) Because contract law is governed by state law, it is rarely raised in federal courts, such as the Eleventh Circuit (there are exceptions, under something called "diversity jurisdiction" or "supplimental jurisdiction" but I imagine the readers of Slashdot don't want me to give them an entire semester's worth of Civil Procedure). When a contract claim is raised in the proper court, however, a contract will generally be deemed to exist if the three elements mentioned above exist.
If this case stands, I'm sure some state will try something like this (I wouldn't be surprised if they already have), but I doubt it would work. Extreme Associates held that persons have a fundamental right to read materials of their own choice in the privacy of their own home. In order to overcome a fundamental right, the government must demonstrate 1) that the challenged law fulfills a compelling state interest, and; 2) that the challenged law is narrow tailored to uphold that interest, and only that interest. While preventing AIDS and the like is undoubtedly a compelling interest, it would be impossible to argue that a broad anti-porn law which targets all persons, including those at no risk of STDs meets the narrowly tailored test.
That's not what this case says. Laws prohibiting murder are passed under the "police power" which allows states to regulate in order to preserve the "health and safety" of individuals. In other words, murder laws are health and safety laws, not morality laws.
You're both right, douchebags.
...bunch of goddamn children, I swear...
crmartin: if you read the original article (i.e. click through the link), you will see that Miranda blamed Senators on both sides, Democrats, and his bosses.
expriest: maybe next time you can include that part of the quote in your writeup.
Ebo