It's not often that you hear John Locke and John Stuart Mill mentioned in congressional testimony, but they both show up (along with Jefferson and Madison) in an eloquent plea for tolerance that professional poker player Annie Duke offered during this week's House Judiciary Committee hearing on "Establishing Consistent Enforcement Policies in the Context of Internet Wagers." Testifying on behalf of the Poker Players Alliance, Duke rejected the argument that online gambling must be prohibited to protect children:
Most people who seek to restrict individual freedom invoke protection of children as their motivation. I suspect they find that argument has more resonance than what is often their real motivation—to treat adults like children, and manage their choices for them….I doubt that there is anyone who is opposed to Internet gamijng because of children who wouldn't still be opposed to Internet gaming for adults, even if it could be proven to them that children can be protected.
Duke likewise challenged the claim that no one should be allowed to gamble online because some people gamble too much:
If the government is going to ban every activity that can lead to harmful compulsion, the government is going to have to ban nearly every activity. Shopping, day trading, sex, [eating] chocolate, even drinking water—these and myriad other activities, most of which are part of everyday life, have been linked to harmful compulsions. Are we moving inexorably toward a world where we prohibit online shopping because some people compulsively spend themselves into bankruptcy?…Are we going to ask banking institutions to monitor and regulate our citizens' online shopping behavior to determine when a purchase can or cannot be approved?
That last scenario alludes to federal regulations required by the Unlawful Internet Gambling Enforcement Act (UIGEA). The regulations, unveiled last month and still subject to change, demand that financial institutions adopt "policies and procedures" that are "reasonably designed" to block transactions associated with unlawful Internet gambling. But as Duke notes, the UIGEA does not define unlawful Internet gambling, and federal regulators say "they cannot and will not tell the regulated community what constitutes an unlawful Internet wager." Duke drives home the insanity of this situation:
The posture of the federal government is, "We are going to create a new federal crime, but we will not tell you what it is." In the proposed rule, the regulators explain their refusal to resolve this by saying that to do so would require them to examine the laws of the federal government and all 50 states with respect to every gaming modality, and that this would be unduly burdensome. Yet that is exactly what they are requiring the general counsel of every bank in the country to do.
Even while delving into the UIGEA's bureaucratic details, Duke does not lose sight of the principle at stake:
The issue before this committee is personal freedom—the right of individual Americans to do what they want in the privacy of their homes without the intrusion of the government….Except where one's actions directly and necessarily harm another person's life, liberty, or property, government in America is supposed to leave the citizenry alone.
Unfortunately, this message is somewhat clouded by the PPA argument, which Duke spent considerable time pressing, that poker deserves special legal treatment because it's not really gambling, since chance is not the predominant element of the game. Politically, the PPA's schizophrenia on the question of individual freedom is reflected by its support for both a Barney Frank bill that would legalize online gambling generally and a Robert Wexler bill that applies only to poker and other "games of skill." I have no doubt that poker qualifies as a game of skill, but I question the PPA's willingness to sacrifice principle and split the anti-UIGEA coalition by seeking special protection for a particular kind of online betting.