The Massachusetts House took a bold step toward advancing the economic interests of our state by amending the casino bill that passed Wednesday to establish a commission that would examine the prospect of creating licenses for Internet poker.
The implications of this amendment should not be ignored. When the internet enabled the world to play poker online, this great American game brought not only immense entertainment pleasure to millions of people, but also sparked the creation of a multibillion dollar, high-tech industry.
However, for reasons that are still obscure to me, the United States Department of Justice from the first took an implacably hostile attitude toward this new industry, driving it offshore and ultimately shutting it down altogether. Instead of celebrating poker as the quintessential American mind sport and powerful American cultural influence it is around the world, and instead of reaping the fruits of the world's love and fascination with the game, the Department of Justice chose instead to repress online poker with prosecutorial threat.
One unexpected effect of the DOJ’s actions, however, is that it provides a rare opportunity for our state: Massachusetts can enter a guaranteed multibillion dollar industry, devoid of any other domestic competition.
Beyond bringing a lucrative revenue stream and many greatly needed high-tech jobs into this state, however, Internet poker also has another attribute that sets it apart from the other games with which it is sometimes categorized. Unlike other casino games, which are purely games of chance played against the house, poker is a game of skill played among people as equal players, with the house merely providing the table and taking a small cut of the winnings. Furthermore, poker teaches strategic thinking. As the education state, it only makes sense that if Massachusetts is to promote gambling, it should consider the one such game that is genuinely educational.
But what of the Justice Department’s opposition? It has never been challenged in court, and I believe that if it were, the government's position would not stand up. The Unlawful Internet Gambling Enforcement Act passed by the United States Congress in 2006 made perfectly clear:
§ 5362(10)(B): “The term 'unlawful Internet gambling' does not include... a bet or wager... [that] is initiated and received or otherwise made exclusively within a single State.”
Indeed, under a fair reading of Massachusetts and federal law, one could reasonably conclude that Internet poker is already legal within this state. Massachusetts state law prohibits games of chance, but poker is a game of skill. However, ambiguous interpretation by state officials has cast a haze of uncertainty in this area, preventing the development of what could otherwise be a thriving Massachusetts industry.
The current amendment is instrumental in clarifying the law in this area and helping Massachusetts lead this promising high-tech industry. For that reason, the Senate should approve it. However, to reap the full benefits that Internet poker could bring to this state, the state Senate must go one step further: license a Massachusetts nonprofit tax-paying corporation to provide a fair house for the playing of online poker among the residents of Massachusetts. Such an entity could produce enormous revenue for the state, while simultaneously promoting educational opportunities and valuable research on intellectually stimulating, competitive mind sports.
Internet poker is a huge industry that Massachusetts should lead. The House has spoken; now the play is to the Senate.
Charles Nesson is a law professor at Harvard and founder of the Berkman Center for Internet and Society.