Notice of appeal filed in 3rd Circuit Court of Appeals in Philadelphia
Having achieved legal standing to litigate in its case against the US government's UIGEA earlier this year (see previous InfoPowa report) the Interactive Media Entertainment & Gaming Association (iMEGA) online gambling trade group has now filed a Notice of Appeal in the 3rd Circuit Court of Appeals (Philadelphia) to progress its challenge against "policy enforcement" of the UIGEA.
In a press announcement this week the organisation recapped on previous litigation, commenting that the prior ruling by the Honorable Mary L. Cooper contained a great deal of good and yet some bad aspects for iMEGA – and for the rights, the people and the medium it seeks to defend.
"First and foremost, the Court established, with crystal clarity, the standing (and associational standing) of iMEGA to challenge this (UIGEA) law in court," explains the statement. "This is no small thing. Judge Cooper herself spent 15 pages of her 29-page decision establishing iMEGA’s standing, in the process knocking down the US government’s primary challenge to our suit. iMEGA flat-out beat the government on that point.
"Many legal commentators—both supporters and naysayers—from the beginning viewed the question of iMEGA’s standing as an insurmountable barrier to moving forward. Well, we’ve crossed over that barrier, and now the government has to contend with iMEGA as fully and unquestionably empowered by the Court to assert our rights in the courts of the United States. The fact that the Federal courts have now recognized iMEGA as the champion of the Internet Gambling industry cannot be overstated," the statement adds.
iMEGA recognises that it failed to obtain a definitive ruling on the "groundbreaking questions we presented, namely, that those fundamental rights we all enjoy – of privacy, speech, expression, and conduct – should not be lessened in any way when we are using the Internet."  Judge Cooper simply affirmed that Congress had the right to pass the law in a constitutional manner – a point iMEGA never challenged.
"As a result, the Court is in essence standing aside and reserving these issues to be decided by a “higher authority,” the United States Court of Appeals for the Third Circuit and, potentially, the United States Supreme Court," iMEGA claims, before emphasising that Judge Cooper acknowledged the failings of the Unlawful Internet Gambling Enforcement Act and, in Footnote 12 on Page 27 of her decision, stated categorically that the “criminal penalties” provided for under the UIGEA do not apply to “financial businesses,” such as “financial transaction providers.”
The statement clarifies that the next step for iMEGA is to continue the battle for the overthrow of the UIGEA in the Third Circuit Court of Appeals in Philadelphia, an appellate court that has been traditionally protective of the fundamental rights of speech and expression.
"One need only look to that Court’s striking down (multiple times) of the Child Online Protection Act (COPA) – another well intentioned but over-reaching Federal law – for an example of how favorable that Court can be to iMEGA’s challenge," it avers.
A positive result for iMEGA in the Third Circuit, affirming its “digital civil rights”, would represent a landmark victory with historic consequences.
iMEGA is under no illusions about the magnitude of its next battle, saying that in light of political pressures, it anticipates that the US Justice Department will bring all of its vast resources to the fight. "(But) with the possible exception of the American Banking Association, no one has more precisely and effectively portrayed how faulty the proposed UIGEA regulations are, in the hope of preventing them from being promulgated or weakened to such an extent that they become meaningless," the statement claims.
"While we were disappointed that Judge Cooper dismissed our (original) lawsuit, this case is far from over. We always knew that this would be the first round in a serious fight, as most important legal battles are. Many legal challenges that lost their first round make up many of the rights Americans now take for granted," the organisation claims, giving as examples:
Brown v. Board of Education (”Separate but Equal” school systems) – Originally lost in U.S. District Court for the District of Kansas
Miranda v. Arizona (Illegal Interrogations) – Originally lost in the Arizona Supreme Court
Gideon v. Wainwright (Right to Counsel) – Originally lost in the Florida Supreme Court and Fourteenth Judicial Circuit of Florida
Tinker v. Des Moines (Freedom of Speech) – Originally lost in U.S. District Court and the Eighth Circuit Court of Appeals.
iMEGA is also currently active on the lobbying front, and president Edward Leyden will provide detailed verbal and written testimony for the Congressional hearing on UIGEA on April 2, 2008 by the House Financial Services Committee, Subcommittee on Domestic and International Monetary Policy, Trade, and Technology.
The hearing will begin at 10 a.m. and will include testimony from representatives from the Federal Reserve System and the U.S. Department of Treasury.
Several representatives of financial institutions are also listed on the witness list, including Harriet May, who will be speaking on behalf of the Credit Union National Association; Wayne Abernathy, representing the American Bankers Association; Leigh Williams, from the Financial Services Roundtable; and Ted Teruo Kitada, on behalf of Wells Fargo & Co.

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