my name is steve saltzburg and along with eric bernstein whose divided time with me are here to represent i make in this challenge to the unlawful internet gambling and forstmann act of two thousand and six and i just ask a factual question  little bit to do with this case but isn't part of the issue for us this that what's the status of h r twenty two sixty seven right now the bill that's pending in the house of representatives that may do away with this particular  now to assess what will happen between now and the end of congress with the president's agenda taking precedence including some us courts where some very large issues and whether this issue will get addressed is i think anyone's guess vagueness and there are two sections of the statute that are particularly important for that this part of the argument and they are fifty three sixty two section ten a that section is the section that defines unlawful internet gambling that the complaint this case alleges and so far as the challenge of our members is that they up to the extent they operate gaming facilities they operate them all in jurisdictions where it is lawful to do so and i believe that the statute is impermissibly vague as apply to all business entities that operate in jurisdictions in which it is lawful for them to accept that while they will hold on to second that's not a i don't think you answered my vague in all its application that you could sit and think of us a single circumstance where it could be applied and it would say yeah that works i believe that there is dictum only difficulties why it's not really and perhaps i can give you an example that was specifically respond to the question this is not simply a challenge that says it's very hard to decide what state law is it's very different in here's an example suppose i get on an airplane flight to close the rica fly to another country in which gambling of all sorts for every legal justice it is in las vegas and why dick city other places in the united state i can make my bets i can have an agent there better for me perfectly awful there's no reason to believe that congress has ever tried to or would try to penalize that now i go on the internet i go on a website which is in costa rica website says you are entering a close to rican website all  ts that you choose to make here are placed in costa rica they are received in costa rica and you are bound by coastal region well and you accept costa rican exclusive jurisdiction how could  way or a business and post require putting on its website a statement that we deem all bets placed on this website be made close to rico alter the law of the various jurisdictions and jurisdiction power of the united states to say if there's a person in the united states doing something they're doing it in the united states whether somebody coast rica wants to say otherwise well that is just you and that is exactly the point that makes this statute they congress has not said that what it wants to do is to make it illegal for anyone in the united states to actually enter into a transaction and knowingly accept that the transaction the bet will be placed in costa rica the what the internet is done is unable to people who previously would have to get on an airplane to go place that that to enter into a casino that's located in another country and not to have the other country say to them you have to do this is to say i want to be in khost rica via the internet i want to be in coast rica but if i'm sitting in delaware and the gambling is illegal no matter how metaphysical you want to get about it i'm not coaster rico i'm in delaware and i think if i understand the statute it doesn't say anything except if it's unlawful in the police where you are and they mean where you are not where you wish you were but where you physically are to be gambling then this statute allows enforcement through various mechanisms to prevent that behavior so i guess i'm struggling with what's vague about that what's vague about saying you know what if you're in if you're in philadelphia you're actually in philadelphia you're not rica i don't think you would like to be philadelphia is a quite lovely place yes it is and yeah and i mean you know physically on the panel  but that doesn't make the act unconstitutional unconstitutional way that's a question of proof isn't well the two issues i think in response one is yes i do agree with you the question of whether or not a person can actually determine where that's being placed doesn't mean a statute that's what there is a portion of the statute which raises a a problem and that is knowing what requirement  judge door in response to judge jordan question what i was out to say in it response to that point that is it is not at all clear that delaware or any state can actually regulate foreign commerce and actually make it a crime for someone to decide to engage in a bet that's not made in delaware that is in fact an internet in international commerce and one of the reasons that this isn't that rather than by saying that by by declaring that that's regulation of one commerce according to this the the state they'd be saying no we're outlawing gambling in our state and the fact that you're in our state police in a way you a gambler in our state and doesn't make a difference where the wires take that you're gambling in our state now that that seems to be via approach congress is taking right place seem to be saying that's ok with us i'm actually not in the join the opinion of the court basically and pointed out that congress stayed away in that statute that was there at issue from trying to make it extra territorial because the court explain that the reach of the internet and the west for capacity to regulate it was really up in the air congress in this particular statute has said it's the find unlawful internet gambling without telling us what it is now jordan you're right that the question that you ask yes can i tell you that there's a supreme court holding that says though or cannot criminally punish they and interstate excuse me an internet bet that's made in another country my an individual who was of voluntarily subjected himself or herself to that country are you claiming that there's anything vague about the statutory language that says if the bet is illegal where place or illegal where we see and i thought your quick accepts the jurisdiction of costa rica by saying i am placing my that in costa rica we both agree on that much white contracting parties in delaware say this contract is the made in and subject to prohibits you from doing so you know you're in delaware right yes doesn't make any difference you've agreed the coast rica law applies so i know i think we can all agree that i know whether i'm in philadelphia or in delaware most of the time it the question is do i know whether or not the bat that i'm place as a matter of war not fact and not broke as a matter of law is being made in delaware in costa rica when i have agreed and the other side is agree that it's a coaster we can bet but the statute says that we're telling you for our purposes within our country it's deemed that it's made in pennsylvania or delaware statute does not say that is that should if you in the definition of unlawful internet gambling it says in the state or if has to be illegal in the place that it's made where is it made so then you might have i suppose it's conceivable you could have a beef with the law of the various state  there's no dispute about the facts it is it a better goes on the internet the better maybe in philadelphia or in delaware there are places of that in a casino enters the casino through the internet much as he could have or she could have entered by voluntarily physically appearing there except at this bet is going to be placed by an agent of this person it's let me just before we sit down let me ask you this is not good it seems as if what mr bernstein was writing about this before the district court at least was concerned about was notice but if this was so important out of ninety six  constitute criminal acts why the why is this issue all of a sudden before our court it seems like it might have been waived in the district court it's really been considered important and yet we spend all our time so far on just this issue let me be give you kenda response that i don't think you're wrong factually the it is very clear that in the complaint paragraphs forty nine fifty sixty emphasized in the district court the way in which i have emphasized it this morning and the reason for that is that our judgment is notice is really the problem the fundamental problem with the statute  sitting in committee there has been no vote there has been no action taken it is been filed and that's where it is and there seems to be no indication it's moving in terms of the issue standing to shorten it is the contention of the point the fear is a trade association they have the right to bring an action on behalf of entities and potential customers as well as customers themselves who will leave that they are being prevented from sensibly being allowed to conduct betting on the internet ok let me ask you  and haven't looked at the complaint i was unable to see anywhere where there's an assertion that your members customers you are seeking to engage lawful internet gambling that will be reached by the act they don't and it's not an allegation in the complaint how can that be an argument that's been put before us now in terms of the issue or standing in the absence of them being specifically named that obviously no one is going to come forward and indicate they're engaging in illegal betting and there's no requirement to do so the courts have ruled what is there in the record  customers of well i'm not right and and so the question and the question remains well i put it this way in order for us to  to get to the questions you want us to get to do we have to agree that you have that you can assert your members third party standing for your customers in order for us that hit the issues you want to hit to we have to conclude oh they've got the standing to assert not what their members want but what the members customers want i think you can find both your honor i think you hit it whether you hit the members or the members customers both and there's case law the reliable consultant case with you that billet he through this court i don't understand that we have previously defined e sixty two of your complaint that the act of permissibly interferes with the personal privacy consensual activity of the members of the public which to avail themselves of the lake as members services but you don't allege that a me but the inference i think you can easily be drawn is if the businesses do not run in a vacuum they do not run with our customers they're not running businesses without individuals who are obtaining or using the services of a company assuming that interactive has question you say that's a there's a privacy right involved i have the right your honor in the privacy of my own home on the privacy of my computer to engage in activities which are my personal desire to engage in including the act of gambling about if it's unlawful how about if the state that you're sitting in says you may not wager in this state if that's the law of the jurisdiction in which you sit are you  you have a privacy right that trumps the police power of the state to outlaw gambling no i do not your honor what i'm arguing when i'm arguing however is that i do have the right to engage in the activity where a where it's legal be act does not in and of itself render the actions of the individual better illegal what prevents is the receiving party the banks the payment processor is the credit card company from prince meaning what i want to do to or for that's sort of bottom line you know what it says what it says to the processes you cannot transmit the money anywhere any time except for certain exceptions of which i don't know where the court has decided there is a separate motion to supplement the record relative to the fact that they have prevented lotteries in north dakota in new hampshire from processing what is legal under this act because no one knows what an unlawful internet transaction is in the banks have decided and again the credit card companies are decided they're going to simply process these all a challenge to the unlawful internet gambling and force an act of two thousand and six and it's very clear that that challenge can proceed if and only if you can demonstrate that the statute is unconstitutionally vague in all of its applications and there are a number of court cases that are indisputable covered by the act to gambling business that opted to establish itself in utah which outlaws gambling altogether by campbell in business could not knowingly accept an internet transaction without running a mentioned in passing without reference to due process clause or the word vagueness and two paragraphs the complaint it was a mention in ninety four pages of briefing i think it's anomalous to consider an issue that the district court only considered in passing that wasn't squarely presented but w perfectly happy to talk about the vagueness argument on the merits you know we're just trying to help the court to avoid constitutional issues that it doesn't need to address except on this when you've got two decisions of our court that basically say that was addressed even somewhat in the district court address that i go into the court has the discretion to consider issues that haven't been presented to the district court but that's true in any way for situation the important point here is again the facial challenge can't proceed as i understood the briefing in the case  that is essentially prudential and therefore one that we could soon standing up for you to marry your out of the rigidity of the rule in steel company is such that i think it would be difficult to bypass the standing and  together i don't i didn't understand the principles of association of standing in third party standing to be preventable exceptions i understood those to be a factor of the inquiry into whether there is article three standing far be it for me to put an impediment in the way of this court reaching a an easier decision and i certainly am open to grow here by analogy the supreme court year or two ago said that even though you don't have jurisdiction over a case you can still exercise control over the case under the form non continuous should have been suspended elsewhere so why can't you just for the moment assume you have standing so sino come was a threshold issue which is to say a non jurisdictional threshold issue which didn't go to the merits of the case i understand the merits of this case to be the substantive due process challenge i'm not sure you promised the right to privacy challenge wherever you find it in the constitution so i don't i think that association standing to say we have association with any to represent these companies that in turn have customers and therefore we have third party standing to represent those customers and i've never seen a court sort of lump association standing on top of my understanding is that the question of whether somebody has article three standing which is to say whether they have suffered an injury sufficient to bring them before court was necessarily in article three inquiry third party standing provides an exception to allow a third party to come before the court and step into the but not the customers that's right your honour's i'd be happy to rest of my brief at this point to be happy to answer any more questions that you have i don't want to take any more of the court's time the necessary  although it's only six states actually make internet gambling unlawful for betters those six states there's an impediment that is you confessing to a crime and under this federal statute itself the problem is that the criminal penalties don't appear to reach of the individual bettors civil sanctions the civil remedy of injunction is not confined to two entities and so someone who came forward the definition of internet unlawful internet gambling it was pretty clear that the persons involved who were being allegedly harmed could not bring their own claims i think that that hypothetical you're right the person could bring the claim and the person hasn't he doesn't have to say i'm already it i'd like to could bring the claim you're correct about that i'm the i would like to go back to the one point the judge or in you raised the question and was this you're actually right when you said extent you make clear that congress has said computer and intentionally and voluntarily enters a casino in macau or close to rica and says i would like to believe but you're asked this don't you ask to give your location when you when you work i don't know ultimately but on this one but it may vary it's an example ok now i go online they asked me to identify myself a name and give a credit card or otherwise arrange for a financial instrument to be to cause  deposit to be made in an account in costa rica so i now have an account in costa rica essentially i am authorizing people in costa rica to place a bet for me they place my bet they receive my bet that if you may be asked your address location maybe on some and some websites and not others as to whether or not you can get the credit they can get the credit card information as to address that depends on the  of privacy that happens to apply in the jurisdiction that they're in like our brief that it does all right great great dog lover thank you will take this matter under advisement