It is not clear at all that the DOJ's seizures were illegal. I despise the UIGEA but under that law the DOJ maintains that doing transactions for online poker involving American citizens is illegal and while I hope they don't win they certainly might.
Yeah, I'm not always a fan of the DOJ but I do respect their position regarding the law. It's their job to enforce the law as it is written, and I'm okay with that. If what the
poker sites are doing is clearly illegal, then the DOJ is certainly acting within its authority to step in, whether we like it or not as poker players.
That said, the argument that it was an illegal seizure under the UIGEA stems from the fact that nowhere in the UIGEA is poker ever mentioned. In fact the UIGEA itself doesn't define ANY gaming as illegal -- as I understand it, the "Unlawful Internet Gaming" reference in the UIGEA is referring to gaming that has been ruled unlawful by precedent and existing laws, such as the Wire Act. The UIGEA was merely an enforcement legislation that laid out the consequences for financial institutions to accept deposits related to whatever internet gaming had already been determined unlawful.
That brings the next argument, which is that existing legislation such as the Wire Act was focused on things like interstate bookmaking and games of chance, and certainly pre-dated any concept of online gaming. The DOJ has been stretching the Wire Act to a great degree in trying to apply it to online poker, and thus far there hasn't been a court judgment either way. If it turns out that a court rules the Wire Act nor any other existing federal legislation applies to online poker, then by definition the UIGEA can't apply to online poker either -- in which case the seizures executed under the UIGEA would have been unlawful.
In reality, unlike many chance games, poker has never specifically been mentioned in any federal legislation. Once the skill argument is settled in our favor -- and so far courts have agreed that poker is a skill game more than a chance game -- it will be even harder to apply any existing legislation such as the Wire Act to online poker.
However there are also legal "safe harbor" protections which can set out that legal actions taken in "good faith" under vague or unclear laws, which are later clarified by court rulings, are allowed to stand. Meaning that even if online poker is found to be exempt, that alone may not be enough to guarantee reversal of the seizures and actions taken against the sites as of Black Friday. Courts could rule that the DOJ acted in good faith based on their interpretation of the law as it was written at the time, and allow it to stand.
