However, in 2011, the DOJ issued a memorandum opinion concluding that the Wire Act's prohibitions on the interstate transmission of bets and wagers apply only to sports wagering and not to other types of gambling.[6].
This opinion clarified prior interpretations of the Wire Act and held that its prohibitions were limited to wagering on sporting events. Thus, the 2011 opinion opened the doors to interstate internet wagering on games such as slots, table games and poker.
Following a change in administration in 2018, the DOJ reversed its position articulated in the 2011 opinion and concluded that the Wire Act does, in fact, apply to all forms of wagering on the internet, including both wagers on sporting events and nonsports wagering such as slots, table games and poker.[7]
The New Hampshire Lottery Commission, joined by certain lottery systems and online gaming companies, promptly challenged the DOJ's 2018 position in New Hampshire Lottery Commission v. William Barr, filed in the U.S. District Court for the District of New Hampshire.[8]
Representatives of other states and state lotteries, as well as certain anti-gambling proponents, joined as amicus curiae. On June 3, 2019, the New Hampshire federal court issued an order finding that Section 1084(a) of the Wire Act "applies only to transmissions related to bets or wagers on a sporting event or contest. The 2018 OLC Opinion is set aside."[9]
The DOJ appealed the New Hampshire Lottery v. Barr decision and, in January 2021, the First Circuit issued an opinion affirming the New Hampshire district court's interpretation of the Wire Act.[10]
The First Circuit held explicitly in New Hampshire Lottery v. Rosen that the prohibitions of Wire Act Section 1084(a) are properly understood to apply only to the interstate transmission of wire communications related to bets or wagers on any "sporting event or contest."[11] The DOJ did not appeal this decision.