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Canada & the European Union Should Get Involved in the Antigua Case...By Hartley Henderson

The Royal Canadian Mounted Police have issued arrest warrants for senior management of DirecTV and DISH Network. In 1995, the Canadian Radio-Television Telecommunications Commission (CRTC) granted exclusive rights to Bell ExpressVu and Star Choice for direct to home satellite service in Canada. All American dishes and satellite service were declared illegal in the country, yet many Canadians had the satellite dishes they purchased prior to the CRTC's ruling and continued to receive satellite service from DirecTV and DISH network throughout the late 1990s and early 2000s to watch the "illegal" signals. Eventually both DirecTV and DISH were able to scramble the signals so that Canadians couldn't access the service from the U.S. based companies, but in the eyes of Canadian authorities the satellite companies were negligent for not stopping the signals to Canadians in the first place, even prior to the CRTC officially declaring the dishes illegal. The fact that the whole U.S. based satellite industry was a grey area in Canadian law that had not been tested and the fact that DirecTV and DISH network were operating in the United States in accordance with American law was not relevant. The RCMP believe that Canada's laws are all that is relevant on the world stage, and hence if any management from the aforementioned companies steps foot on Canadian soil they will be arrested immediately. Furthermore, Canada is in talks with the U.S. department of justice to extradite DISH and DirecTV management to Canada for prosecution.

The above story is only partially true. In 1995 the CRTC did grant exclusive rights to Bell and Star Choice for satellite service and Canadians were using the "illegal satellites" with service provided by the U.S. satellite carriers. However that's where the truth of the previous paragraph ends. Canada has no intention of arresting any Americans in regards to this. Furthermore, even if Canada asked for extradition or tried to arrest the Americans for doing something which was perfectly legal in the United States and was a grey area in Canadian law, the American government would likely demand the charges be dropped and also expect an apology for the wrongful prosecution. Yet, what was described above is precisely what the U.S. department of justice is currently doing with regards to online gambling. Let's rewind to 1997.

The internet was in its infancy, online gambling had just started to evolve and there were absolutely no laws in place regarding internet wagering in the United States. Of his own initiative, Jon Kyl tried to equate the internet with the telephone and introduced his Internet Gambling Prohibition Bill. The main argument was that the internet and the telephone were one in the same and any betting laws pertaining to the telephone (i.e. the wire act) also pertained to the internet. Courts ruled that they weren't the same and further ruled that the wire act was for sports betting only so it could not apply to other forms of wagering such as poker and casinos.

One thing beyond dispute is that the offshore companies were legal in the jurisdictions they were operating from. Antigua, the United Kingdom, Costa Rica, Gibraltar, The Isle of Man, Australia etc. all issued gambling licenses which allowed the companies set up there and to take bets worldwide, including from American citizens. There was no grey in the countries which authorized the sportsbooks, casinos and eventually poker sites to set up there, the grey area was and still is with the United States. Despite the court's ruling, the United States Department of Justice decided the courts were wrong and it was correct in its interpretation of the wire act and issued arrest warrants for individuals located offshore. Included in those warrants was one for World Sports Exchange founder Jay Cohen. Jay, to his credit, tried to prove the department of justice wrong and voluntarily returned to the United States to face the courts and exonerate himself and others who he believed were operating legally offshore. In 2000 Jay was found guilty in a U.S. court for violating the Wire Act, but all who saw the trial were in agreement that the proceedings were a farce and that justice was never really served. The presiding judge ordered the jury to find Jay guilty, although many jurors were convinced he would have been found innocent if not for the judge's order. In fact, Jay himself stated that jurors came to him after the case and said they wanted to find him innocent but the judge's command to the jury made that impossible. Still, as unjust as that was, Jay and several others who the government ordered arrest warrants for were American citizens operating offshore. Clearly U.S. law was not meant to apply to non American citizens operating legally from the country where they are located.

The first American law actually passed involving internet gambling was the Unlawful Internet Gambling Enforcement Act of 2006 passed in October. Let me repeat that: of 2006!! The act made it illegal for U.S. financial institutions to process transactions for online gaming companies. As a consequence of that law being enacted, all public companies offering internet wagering closed off their operations to American bettors and many other private companies exited also because they that it would be difficult to deal with U.S. banks. Yet despite thae fact that the UIGEA wasn't passed until October, the U.S. department of justice arrested David Carruthers and Peter Dicks upon touching down in the United States prior to the law being enacted. And furthermore, they were arrested for something unrelated to the UIGEA, which is still the only law in the United States which applies to internet wagering. The UIGEA only relates to funding internet wagering. Furthermore, these were NON American managers of public companies that were operating legally according to the British law where their operations were set up and incorporated. Similarly, the arrests of Stephen Lawrence and John Lefebvre, Canadian citizens and former managers of NETeller, were in relation to funding offshore accounts, but the warrants related to activities that happened years prior to the UIGEA being passed into law. When the UIGEA did actually get passed, both men were long gone from the company. Think of the ramifications of that! Can you imagine the outcry from the public and media if a law abiding U.S. citizen was arrested for doing something which just became illegal, but was not illegal at the time he or she did it? It's unconscionable. Imagine how much worse it would be if that arrest was for a citizen of another country. Yet that is precisely what has happened. So as one can see, what the American government is currently doing is almost as sinister and ridiculous as the spoof written above of the Canadian authorities trying to arrest the DISH and DirecTV managers.

That brings us to the headline of this article. While the United States has been on this crusade against internet gambling operations worldwide, no other countries have stepped in to fight for their citizens or their economic rights except for Antigua. The small country of Antigua and Barbuda, realizing that its laws and economy aren't ruled by the U.S.A., went to the WTO and fought for the right to sell its services in accordance with WTO rules and Antiguan law. The WTO sided with Antigua and demanded the U.S.A. open its markets to Antiguan internet gambling companies, but the United States has steadfastly refused to abide by the WTO ruling. To that point, the European Union (EU), Canada, Mexico and Chinese Taipei all stated they were interested in the case as third party participants but have done nothing to date. For the good of their own economic interests, and to prove that the WTO is not a paper tiger, those countries and particularly the European Union and Canada should step in and side with Antigua. Almost all WTO meetings of late have proven pointless and one sided.

In areas of cotton, agriculture, lumber and global warming, among other issues, the United States has seemed unwilling to budge and have demanded the WTO accept their views in all those areas. In fact, delegates from many third world countries walked out of a WTO meeting at Cancun in 2003 because the United States and EU refused to accept WTO resolutions which would have given the developing countries more rights. In all fairness, the demands of the third world countries at that meeting may have been unrealistic (expecting the developed countries to stop offering subsidies to farmers as one example), but it still doesn't change the fact that the U.S. was absolutely unwilling to discuss any alternatives. After all, isn't negotiation about give and take? The EU even confirmed America's unwillingness to negotiate at the WTO last year when Peter Mandelson, the European Trade Commissioner, blamed the United States for the failure of the WTO meeting in Doha stating that "Washington was unwilling to accept or... acknowledge flexibility being shown by others".

And as far as softwood lumber goes, many WTO rulings in favour of Canada and against the U.S.A. were ignored by Uncle Sam and eventually Canada settled for a lesser settlement than what the WTO ordered, figuring that the U.S.A. would delay and dither forever and that something now was better than nothing later. But it has also been widely accepted that WTO decisions usually side with the United States, and since the WTO's inception in 1995, the U.S.A. has been the biggest beneficiary as a result of WTO rulings. Is this what the WTO was designed for, to be a yes man for America? Hardly, the WTO was set up so that larger countries couldn't pick on smaller ones as a result of size and power which is precisely what is happening. Canada and the European Union have every reason to be involved in this case to ensure a dangerous precedent isn't set,`34 whereby the United States is the only country that matters in WTO rulings. Consequently, they should stand side by side with Antigua to demand that the United States stop acting as rulers of the world and start accepting WTO decisions that go against them.

The European Union, and especially Britain, should be ashamed that they have allowed the American justice department to arrest European citizens for providing a service that is legal in Europe. If Carruthers or Dicks had set up a physical bookmaking operation in the United States then America would have every right to arrest them just as they arrest illegal bookmakers on American soil now. But what Dicks and Carruthers did was not illegal where they operated. Is Britain basically stating that their own laws are impotent on the world stage? If so, why would anyone ever set up an international corporation located in Britain if the country isn't willing to fight for their own laws? As well, what does it say for the AIM (British stock market)? BetonSports and NETeller were allowed to incorporate and sell shares in Britain and the breadth of their operations were well laid out in their prospectuses. If Britain doesn't have enough guts to defend their stock market regulators for allowing these companies to operate in the first place, then why should anyone ever invest in British stocks again? After all, a precedent would be set essentially stating that at the first sign of trouble for British public companies, the government of the U.K. will run and hide.

As for Canada, politicians have scored major points by standing up to the United States. To many individuals in Canada, the United States is seen as a bully who does what it wants and essentially gives the finger to anyone who tries to stand up to them. This happened with softwood lumber, it happened with the mad cow scare when America closed its border to Canadian beef and refused to open it when the beef was proven safe, and it happened after 9-11 when America accused Canada of letting the World Trade Center bombers into the United States and then refused to apologize to the country when that was proven to be false, and in fact continued to perpetuate this lie. Furthermore, Canada allows the small town of Kahnawake to offer sports betting services to the United States, but the United States has never even addressed anyone from the Mohawk Nation when issuing arrest warrants. It appears the U.S. doesn't want to upset the Indian reserve since they have their own native problems, and the last thing they want is a civil war with the first nations. After all, the UIGEA gave an exemption to the natives to offer internet wagering, but the U.S. government has no problem arresting British citizens upon entering the U.S. Talk about a double standard.

Thus we are at a point where other nations either have to stand up to the United States or declare George Bush president of the world and let the United States determine morals and economic policy for every other nation on earth. True, Antigua has a small population and internet gambling may not be of paramount importance to all these other countries, but this is the first time a smaller country has been willing to take the type of stand they have against the United States for what they believe are their rights under the WTO. And the WTO and appellate body have made it clear that the U.S. is in the wrong. This is David vs. Goliath and as was the case in the bible, David is on the side of right here. The United States is arguing that remote gambling is immoral, but they offer remote gambling everywhere in their own country. Since when is protectionism about morality? If the European community, Canada and all nations in the WTO for that matter, truly believe in the principles and purpose of the World Trade Organization then they should come to the defense of Antigua. Doing so will send the message that the WTO is not a one way street in favor of the world superpowers, it will also send a more important message that when you deal in a global economy disputes have to be settled by international courts. And if the decisions don't go a country's way, sometimes they just have to admit that maybe they were wrong.

For the sake of economic fairness, for the sake of their own citizens who were wrongly prosecuted and persecuted by the United States and for the sake of avoiding a precedent setting case declaring the United States as having the sole power to dictate ethics and morality to the rest of the world, the European Union should get off the fence and take the side of Antigua in the WTO case involving internet gambling.

Hartley Henderson

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