Snake Eyes by Chris Trayhorn, Publisher of mThink Blue Book, April 1, 2004 Five’ll get you 10 that online gambling is here to stay. Cyber casinos already take wagers from around the globe on everything from five-card stud to the first race at Belmont. Even the industry’s harshest critics concede online gambling revenue has soared tenfold in the past six years to about $4.2 billion. With generous payout packages and surging demand, it’s no surprise that affiliate sites are jamming the search engines like blue-haired ladies at a Tom Jones concert. Affiliates are anxious to collect their piece of the action, with a few lucky superaffiliates raking in five figures a month. But it’s an election year in the US, where online casinos are outlawed, and affiliates are feeling a chill wind from lawmakers and federal prosecutors who allege online gaming is linked to ID thefts, personal bankruptcy, money laundering and, you guessed it, even terrorism. As Revenue went to press, the US Senate was preparing to debate a bill that would ban the use of credit cards, wire transfers or other financial instruments for online gambling. A similar bill sailed through the House of Representatives last year on a 319-104 vote, authorizing five-year prison terms and hefty fines for violators. “From a family perspective, the home may be considered a castle, but it should never be a casino,” said Rep. James Leach, R-Iowa, who authored an earlier version of the anti-gambling legislation in the House. The strong rhetoric, combined with aggressive tactics used by federal prosecutors, has frightened many affiliates so much that they are reluctant to discuss their activities on the record out of fear they may be targeted by the government. Other affiliates, however, have become vocal proponents for legalized online gaming in the United States. “I think there’s a lot of posturing going on right now,” said Cynthia Carley, outspoken owner and manager of the 150- member Gaming Portal Webmasters Association at GPWA.com. “There are a lot of legal attempts to intimidate people, but they don’t have any legal grounds at the moment. And getting those legal grounds is going to be more difficult than they believe it will be.” To be sure, there are several other challenges in this controversial sector: Some affiliates complain they have trouble collecting commissions from offshore casinos, and they get little sympathy from US authorities. Many longtime affiliates think the sector is simply too crowded, with hundreds of new affiliates joining the throng each day. Longtime stigmas of gambling addictions and organized crime still haunt the industry despite legal gambling in most of the US and lotteries in 39 states. But it’s the legal issue more than any other that has affiliates on the edge. Cynthia Fanshaw, the 27-year-old marketer featured in our cover story, told Revenue she abandoned the shifting legal sands of gaming five years ago for the relative stability of the adult entertainment industry. “I started having conversations with a few Internet industry attorneys, and nobody could give me a straight answer,” she recalled, saying she feared being declared guilty by association. “By promoting an online casino, you’re getting in bed with them. If you’re promoting them, and they’re not doing business correctly, you’re just as guilty as they are.” Fanshaw was just one of many affiliates, program managers, casino operators and others who complained that authorities have failed to provide clear guidelines on what is legal and what is not. Revenue repeatedly pursued the question with the US Justice Department, but the clearest response we obtained was from department spokeswoman Casey Stavropoulos, who simply said affiliate marketing of online gaming remains “a gray area.” Active Enforcement That, however, hasn’t stopped the Justice Department from going after parties they feel are too far into the gray. In mid-2003, PayPal Inc. and its parent, eBay, agreed to pay $10 million to settle federal allegations it had “aided” in illegal offshore and online gambling by transmitting millions of dollars in funds derived from “criminal offenses.” Prosecutors said the offenses involved the processing of illegal gambling transactions in Missouri, coincidentally the home state of US Attorney General John Ashcroft. “Offshore sports books and online casino gambling operations which do business in the United States generally do so in violation of federal criminal laws. Therefore, we will continue to investigate and pursue such activity,” said Raymond Gruender, the US Attorney whose office pursued PayPal. Not surprisingly, PayPal no longer services gambling transactions. Neither does Commission Junction nor BeFree, the two popular affiliate networks recently combined into a single division by ValueClick. About the same time, the Department of Justice in Washington sent a warning letter to several media organizations regarding “Advertising for Internet Gambling and Offshore Sportsbooks Operations.” The letter was widely circulated, including on the Web site for Interactive Gaming News, where Revenue obtained a copy. It said, in part: “The sheer volume of advertisements for offshore sports books and online casinos is troubling because it misleads the public in the United States into believing that such gambling is legal when in fact, it is not.” The letter went on to reiterate that Internet gambling was illegal within the United States “whether or not such operations are based offshore.” A few months later, the operator of a portal site was subpoenaed to testify before a federal grand jury investigating advertising for online gambling, according to published reports. Several media organizations, including radio giant Clear Channel Communications, also were subpoenaed in connection with the advertising probe. Revenue asked Jan Diltz, the spokeswoman for Gruender’s office, for confirmation of the reports and clarification of the laws surrounding affiliate marketing, but received only a Kafkaesque series of responses. Diltz said she could not comment on any ongoing investigation until indictments were issued. Asked if that meant there was an ongoing investigation, Diltz said she could not comment. Nor would she comment generally on whether affiliate marketing of online gaming was legal or illegal. Asked how affiliates could know if they were in danger of violating the law prior to being indicted, Diltz said she could not comment. Unclear on the Concept Diltz said department regulations prevented her from saying anything else about the matter. Instead, she pointed to the press release that included Gruender’s comments months earlier at the conclusion of the PayPal case, but that said nothing about affiliate marketing. The lack of clear guidelines has left many casinos, program managers and affiliates feeling frustrated. “With all the subpoenas that were sent out to radio stations, magazines and a lot of different merchants that took online gaming advertising, it’s been more of a threat than anything else,” said Daniel van Dijkman, global affiliate manager for VIPProfits.com, a network with about 3,500 active affiliates serving eight online casinos. About 70 percent of his affiliates operate in the US. Without clarity on the legal limits, or even on whether the grand jury has completed its probe, Carley said her association’s members were equally divided over how to proceed. “We have people who are ready to jump out there to do battle, and we have people who do everything they can to fly under the radar,” she said. “They don’t want to be seen, they don’t want to be tracked, they don’t want to be known.” Attorney Larry Walters, who has represented casinos in First Amendment cases, said the power of the US government to regulate advertising is not as extensive as its ability to regulate a service like gambling and therefore affiliates would be somewhat less constrained than the casinos themselves. Casino operators tend to see the enforcement campaign as a t actic to silence affiliates. “I think a few people in the United States with dogmatic opinions are trying to frighten affiliates and advertisers out of conducting their business in a proper manner,” said David Caruthers, CEO of BetOnSports.com, which operates a 1.2-million-square-foot casino in Costa Rica. The company also has operations in the Dominican Republic, Antigua and South Wales, all of which Caruthers states are “licensed and legal and I would defend that position very, very, very robustly.” Caruthers hinted the legal climate had worsened under the Bush administration. “I think we’ve seen in recent times … correspondence from the Department of Justice that is very ambiguous and very threatening, with really no substance or legal fallback for their accusations,” he said. “I see that as aggressive, dogmatic and unfair.” Rep. Bob Goodlatte, R-Va., was among the most ardent supporters of the bill that cleared the House and the bill now pending in the Republican-controlled Senate. When the House bill passed, he hailed it as a step that would help to “close off opportunities for money launderers, terrorists and organized crime.” “The director of the FBI has testified that Internet gambling remains a loophole in America’s fight against terrorism,” Goodlatte said at the time. Part of Leach’s bill, HR 21, could be blended with the Senate version in conference committee if the measure progresses through the Senate. “Internet gambling increases consumer debt, makes bankruptcy more likely, money laundering an easy endeavor, and identity theft a likely burden,” Leach said. Social Costs Goodlatte also stated that Internet gambling has “contributed to a whole host of social ills.” To be sure, online gaming certainly makes it easier for gambling addicts to place wagers, said Marc Lefkowitz, director of training for the California Council on Problem Gambling. However, he said his group has no opinion on whether gambling is good or bad. Neither does Gamblers Anonymous, the leading counseling group for the 5.4 percent of American adults who are believed to have a gambling addiction. Lefkowitz said the important thing is that land-based and online casinos adopt a number of responsible gambling practices. “We want them to be able to refer [problem gamblers] to us, to post a help-line number, and perhaps train employees in responsible gambling practices,” said Lefkowitz, who has led numerous training sessions at land-based casinos. “We’re starting to get a good response from some gambling Web sites who are interested in making sure they have the same thing.” Caruthers, the CEO of BetOnSports.com, said the need to help problem gamblers was among the reasons that he favored regulation and control of the online gaming industry. “Any proper operator worth his salt would have procedures in place to protect the business from being exploited by underage people or people with gaming problems,” he said, pointing to information on his site that advises customers to wager responsibly and to seek help if they need it. “We are very, very acutely aware and sensitive to running our business with the highest degree of probity,” Caruthers said. “And looking after your customer is No. 1 in this field.” The Glut For all the political sound and fury in the US, all sides agree that online gaming is growing faster than anyone expected. Goodlatte estimated online gaming revenues grew from $445 million in 1997 to $4.2 billion in 2003. And Carley, who runs seven gaming portals in addition to GPWA.com, notes there were only 300,000 listings for “video poker” in Google when she launched VideoPokerJunkie.com in December 2000. Today, she said, there are 4 million listings. Carley warns there is a glut that makes the affiliate business very tough. She said her group has members who are self-supporting and others who’ve been doing it for years but don’t make $1,000 a month. “I believe we’re in a glut and we have been for the past year,” she said. “I’ve seen people getting out of the business and casinos failing. It’s a tremendously competitive business.” Adding to this is the risk that an unscrupulous offshore site might just decide not to pay an affiliate. “I have had situations with the larger companies where they refused to pay me,” said Allen Schneider, a former director of the Interactive Gaming Association who now runs the Internet marketing firm RUOnTheNet.com. Schneider claims that he had to fight one Israeli company for eight months to get the $5,000 in commissions. Affiliates recommended that newcomers seek sites that pay commissions based on a portion of what the client deposits at the site. Two other common models offer a share of the client’s losses, which may be small, or a modest bonus for bringing on new clients, a model called cost-per-acquisition or CPA. Carley offers another, simpler piece of advice: “Use common sense.” All things considered – legal risks, competition, social ills – this might not be the right area for all affiliates. To succeed, affiliates need to find the right niche for themselves, whether that is gambling or, say, baby clothes. There is no right or wrong answer here. However, Marc Lesnick, conference organizer for the Casino Affiliate Convention, argues that throughout history, the people who took the biggest risks got the biggest rewards. “It’s like the 1920s when you had prohibition,” he said. “The people who took the risk, the rum-runners, got rich. The affiliates are, if you want to say it, breaking the law by enabling gambling. But nevertheless, they’re getting some hefty rewards for it.” TOM MURPHY is editor in chief of Revenue Filed under: Revenue Tagged under: 02 - Spring 2004, affiliate marketing, Features, Legal, Lifestyle, mtadmin About the Author Chris Trayhorn, Publisher of mThink Blue Book Chris Trayhorn is the Chairman of the Performance Marketing Industry Blue Ribbon Panel and the CEO of mThink.com, a leading online and content marketing agency. He has founded four successful marketing companies in London and San Francisco in the last 15 years, and is currently the founder and publisher of Revenue+Performance magazine, the magazine of the performance marketing industry since 2002.