Faraday commented: "I am not guilty of the use of electricity in Guantanamo"
What other purpose could gambling software be used for? It's irrelevant whether it was sold to overseas countries since, given the nature of the internet, New Yorkers would have access to those sites.
I'm not saying that I think what is happening is right, I just think your comparison is unfair.
Not all gambling is illegal. New York State itself has a gambling operation, it is called the lottery and it serves as a way to extract money from poor people. There are casinos in New York State, on reservations.
"It's irrelevant whether it was sold to overseas countries since, given the nature of the internet, New Yorkers would have access to those sites."
That is a slippery slope. Hacker News does not censor its comments; that would make HN illegal in China. Do you really want to say that one jurisdiction's laws should apply elsewhere, just because of the Internet?
The Internet is a communication system. If New Yorkers cannot gamble in a country where it is legal by communicating their bets over the Internet, New York is engaged in censorship; arresting someone who wrote software that was used by New Yorkers who ignored that censorship is something I would have expected from China or Iran.
What this shows is, at least for me, frightening trend to ignore the souverenity of foreign states when you consider them less powerfull than yourself. Germany is doing it with Switzerland for example too.
A "service", website, or software program is considered to take place where the user is located, not where the website is located. This standard was set decades ago (in relation to services) and extends quite well to websites.
Thus, the gambling in your example would be treated by international law as occuring in NY. Moreover, by choosing to do business with NY residents (unless such business is minor or incidental), the gambling websites would be subjecting themselves to the jurisdiction of NY for criminal law purposes).
It could be lawfully used for gambling in OTHER countries. But actually this question is absurd. Writing gambling software is not illegal in New York. The burden of establishing a lawful motive is not on the defendant; instead the prosecution must prove that the activity he conducted was directly in support of illegal activity. That is a big difference.
That's absolutely relevant. There are US companies that make slot machines. Most places in the country their products are illegal, just like the activities that this gambling software allows for. If an underground casino gets busted and is found to have slot machines, it's not the maker of the slot machines that is in trouble (unless there is evidence they were sold illegally).
All the tools in the comparison are used in a manner that was not intended by the creator. The point is that it is unfair to charge the creator for the misuse of the tool. The problem is that in our society some "legal-oriented" people think of themselves as very smart because they believe to have attacked the root of the problem; this is under the rationale of "if we eliminate the source, we eliminate all its misuse" (as a side bar, the same rationale is used by the entertainment industry). The problem with this rational is that it destroy the good uses of the tool. And it has a double domino effect, one of chilling some creators (in this case some developers), and one of the thrill of the power on legally hurting someone (I got him! how smart and powerful I am).
In reality it hurts the very thing that they claim to defend: the land of the free.
Educational.
Recreational (no money involved).
Research (like to collect gambling data).
To learn how to code and/or how games/strategies work.
He sold gambling software while living in a state where gambling was illegal.
I'm all ears for arguments that gambling shouldn't be illegal or that prosecutors abuse their authority or many other arguments.
Jack Daniels Whiskey is made and sold by a distillery in a county where selling liquor is illegal.
It might seem like a pedantic question, but laws can be very narrow in scope or vague in meaning. "Gambling" and "Selling gambling software" are legally two different things.
Maybe his actions were, indeed, perfectly legal, and this is entirely a prosecutor abusing his power. But we have to be able to see a distinction between him selling something like a hammer, which isn't illegal to use in his jurisdiction, and gambling software, which probably is illegal to use in his jurisdiction.
Covering your eyes and not figuring out if your actions are legal or not is a pretty crappy defense.
> extremely stupid to be making something that is
> illegal to use in your jurisdiction
If he was making slot machines and selling them to legal casinos (e.g. in Las Vegas), do you think that he would have been busted like this? Highly doubtful.
This happened because his customers were crossing the line with the product, but -- to carry the analogy -- I doubt a slot machine maker would be held accountable if Caesar's Palace decided to open up an illegal gambling operation with the slot machines. The issue here is that the main offenders (foreign casinos) are outside of the state's jurisdiction, so they are going after the only person that they do have in their jurisdiction.
If he were growing marijuana and selling it to people where marijuana is legal, no one would have trouble understanding this concept: hire a lawyer very early on. He only got a lawyer after the cops descended on him, and then only crappy ones he found on the Internet.
I don't know the specifics of the law, and you don't either.
(I shouldn't have to say this, again, but I'm not saying there wasn't prosecutorial abuse here. Neither does this guy, because he hoped he could ignore the question.)
A better analogy:
- Drugs are legal to possess, but the act of buying them is illegal
(in the US).
- This guy makes an e-commerce software package designed specifically
for selling drugs.
- This guy only sells the software to companies in Amsterdam.
- He's arrested because one of the companies in Amsterdam is selling
illegally to US citizens.
- The government puts a gun to his head and tells him to hack into
his customers' websites in a scene straight out of Operation
Swordfish
I don't know the law, and neither do you, and neither did this guy. If he had spent a few thousand of that $2.3 million on a lawyer he would be better informed and had someone on retainer.
Maybe he would have found out some simple way to comply.
Maybe he would have found out there was no way to comply.
Maybe he would have found out that he was already completely complying and this is just your "Operation Swordfish" scenario.
But, since Operation Swordfish has been brought up, I'm out.
My general thought is that it's quite possible that his lawyer would not have foreseen this turn of events. His lawyer probably would have referenced local, state, and Federal law on this, but could have easily not seen that another state would try to prosecute him for his clients offering online gambling to residents of that state.
(I think it goes without saying that a lawyer probably would not have foreseen the government offering him a plea bargain to commit a Federal -- and international -- crime in order to plead guilty to a lesser charge)
It is illegal to do certain things with marijuana. Possession is one of those things. Growing, distributing, selling, processing, all fall under the category of possession.
It is not illegal to write about marijuana, sing songs about it, paint pictures of it, talk about it, or trade photographs of it.
"Gambling" is not illegal.
It is illegal to gamble in certain ways. One of those ways is when a gambling participant wins anything of tangible value greater than what they paid to play the game. This is why some children's arcades that give tickets for games of luck are legal, and some carnival games are legal. Your winnings are required by law be worth less than what you paid to play.
Playing poker is not illegal, playing bingo is not illegal, playing slots is not illegal, playing blackjack is not illegal, guessing who will win the presidential election is not illegal, and guessing how much rain will fall next Tuesday is not illegal. Just don't gamble for tangible value while you do these things!
"He sold a Bugatti Veyron in a state where driving over 75mph was illegal."
With gambling software, the only thing you can do is illegal gambling. With a Bugatti Veyron, well as long as its speed is not locked at 75mph+, you can drive it all your life without doing anything illegal.
You can also do legal gambling.
Absolutely. And that appears to be the context in which Laurent was using it. carbocation compared selling a sports car in a jurisdiction with a low speed limit to selling gambling software in a jurisdiction where gambling is illegal. Laurent replied that drivers of the sports car could still obey the law, while users of the gambling software would always be disobeying that jurisdiction's laws.
I'm not sure I find the argument all that compelling, but it seems to me that people are arguing with a premise that is tautologically true.
(1) Only if they are gambling with the gambling software. They could be using it for non-illegal gaming purposes (such as free online poker where no money is involved), for research, for education, etc. Gambling is illegal in this hypothetical jurisdiction, not software that allows one to gamble.
(2) Just as the Veyron can be produced in one jurisdiction and used elsewhere, gambling software can be produced in one jurisdiction and sold to people who then use it elsewhere. From the article, this is, indeed, what the software author claims to have done.
In other words, software that can be used for behavior that is illegal in one jurisdiction can quite possibly be used for legal purposes in that same jurisdiction (1) or for the same purpose in a jurisdiction where such behavior is legal (2).
Saying that you can't gamble in a place where gambling is illegal doesn't advance the discussion because nobody has yet disagreed with that explicitly or tacitly, as far as I can tell.
That's a good part of my point.
> With gambling software, the only thing you can do is illegal gambling.
That's untrue.