Deputy Attorney General Rosen Extends Forbearance Period for Application of Wire Act to Non-Sports Gambling

On June 12, Deputy Attorney General Jeffrey Rosen issued a memorandum to all United States Attorneys, all Assistant Attorneys General, and the Director of the Federal Bureau of Investigation regarding the forbearance period for applying the Wire Act, 18 U.S.C. §1084(a), to non-sports gambling.

In 2018, the Department of Justice’s Office of Legal Counsel, in a reversal of that office’s 2011 memorandum on the Wire Act, had opined that three of the four clauses of the Wire Act could be applied to non-sports gambling.  On January 15, 2019, then Deputy Attorney General Rod Rosenstein issued a memorandum directing that federal prosecutors refrain from applying the Wire Act to persons whose conduct violated that Act for 90 days after issuance of the OLC opinion.  On February 28, another memorandum by Deputy Attorney General Rosenstein extended that forbearance period until June 14, 2019.

Subsequently, on June 3, the United States District Court for the District of New Hampshire issued an opinion holding that the Wire Act extended solely to sports gambling.  While the Department “is evaluating its options in response to this opinion,” Deputy Attorney General Rosen stated, the June 12 memorandum extended the forbearance period from June 14 to the later of December 31, 2019 or 60 days after entry of final judgment in the New Hampshire litigation.

Note: While the Deputy Attorney General’s memorandum does not represent any substantive change of position by the Department, its extension of the forbearance period effectively pushes potential enforcement of the Wire Act in non-sports gambling activities, including state lotteries and their vendors operating as authorized under state law, at least to 2020.