Contracts and Poker: Is Getting Help Between Hands A Criminal Offense?

In a recent column (Volume 37, Issue 18), we discussed whether there was a rules violation when a friend of one of the players at the final table of the WSOP main event shared information on his computer with the eventual winner between hands.

There has been some concern, however, that this may have also been an actual violation of Nevada law. Let’s look more closely at that law.

Gambling can be defined as attempting to overcome odds against you. It follows that gamblers have always tried to find ways to turn the odds in their favor. In a casino, that means beating the house edge. There are some very entertaining novels by James Swain in which the plot is set in motion when the hero is hired by a casino to figure out how it is being taken advantage of.

In 1962, mathematician Edward O. Thorpe shocked the gaming industry by publishing Beat the Dealer, the first comprehensive guide to card counting, a way to beat the house’s edge in Blackjack.

The industry countered with a number of measures. As we have seen in the movies, it can be hard to keep track of the count in your head, so some players concocted devices that would help them keep the count. To counter that, the Nevada legislature enacted § 465.075, which originally stated:

It is unlawful for any person at a licensed gaming establishment to use, or possess with the intent to use, any device to assist:
1. In projecting the outcome of the game;
2. In keeping track of the cards played;
3. In analyzing the probability of the occurrence of an event relating to the game; or
4. In analyzing the strategy for playing or betting to be used in the game, except as permitted by the commission.

In 1986, Robert Anderson was arrested for using such a device. The court’s description of the device sounds laughably primitive in this age of miniaturization:

Anderson wore shoes and socks. The socks were cut away in  order that the bare toes could input data into the computer. Switches were attached in the shoes with velcro. Anderson would push up with his toes for one, down for two, up for eight, down for four. These combinations permitted Anderson to add up to any number. Wires extended up Anderson’s legs to a battery pack located in his left rear pocket. The main portion of the computer was strapped to his left calf. Inflated balloons kept the apparatus away from the skin in order to prevent burns. The computer sent vibratory signals to a special receiver located inside an athletic supporter. 

Anderson claimed that the statute was unconstitutionally vague because a person would not know that the prohibited “device” included a computer. I have always been amused by this argument, which seems to assume that a would-be criminal first reads the statute to determine whether the act they are about to commit crosses the line into illegality.

In any event, the Nevada Supreme Court disagreed, suggesting that he could have consulted a dictionary. But just to be sure, the legislature amended the statute to clarify that it covered computers. The present version reads:

Use or possession of device, software or hardware to obtain advantage at playing game prohibited. It is unlawful for any person to use, possess with the intent to use or assist another person in using or possessing with the intent to use any computerized, electronic, electrical or mechanical device, or any software or hardware, or any combination thereof, which is designed, constructed, altered or programmed to obtain an advantage at playing any game in a licensed gaming establishment or any game that is offered by a licensee or affiliate, including, without limitation, a device that:

1. Projects the outcome of the game;
2. Keeps track of cards played or cards prepared for play in the game;
3. Analyzes the probability of the occurrence of an event relating to the game; or
4. Analyzes the strategy for playing or betting to be used in the game,
except as may be made available as part of an approved game or otherwise permitted by the Commission.

Note that the statute prohibits devices and software used “to obtain an advantage at playing any game.” Historically, “advantage play” has meant overcoming the advantage the house has on the player, and it was clearly the intent of the legislature when enacting this statute to protect the house advantage. Does it apply when a player takes advantage of another player in a game that is not played against the house, such as poker?

When interpreting a statute, some judges look to the “legislative intent” in order to give contextual meaning to the language of a statute. Other judges – this view was adamantly endorsed by the late Supreme Court Justice Antonin Scalia – hold that the only thing that matters is the language of the statute itself and any supposed intent behind it is irrelevant. Under that view, this statute could be applicable to a player who takes advantage of other players in a poker game.

With that background, let’s explore the application of the statute to poker tournaments.

Although the term is used loosely, it seems to me that by definition, Real Time Assistance (RTA) means assistance during the play of a hand. This is clearly prohibited by the present TDA and WSOP rules and probably by the statute. It is more of a problem to detect in online poker, though apparently sites can determine whether it is being used, but in live games it can be monitored by observing whether a player is consulting a device during the play of a hand.

So the present concern is with obtaining assistance between hands, whether you want to call this RTA or not. The player would not be getting information about any specific hand, but information about how another player has played past hands in order to predict their play of future hands – or perhaps information about what other players may have picked up about their own past play.

This is exactly what good players do. Poker rewards a player who “analyzes the strategy for playing or betting to be used in the game,” in the language of the statute. We determine, for example, whether players are tight or loose, or passive or aggressive, and adjust our play accordingly.

More sophisticated analysis determines the extent they are deviating from GTO play. In fact, solver charts, which some players consult between hands, could be said to be devices that “analyze the strategy for playing or betting to be used in the game,” though I think the statute can fairly be interpreted to refer to using information gathered from actual play.

Because few hands reach showdown, there would not be much available data about how a player plays hands unless the tournament was streamed. So I think the issue boils down to whether we should prohibit players from obtaining information from others who are using a device that inputs information from previous hands gathered from a livestream.  
If the WSOP decides that obtaining assistance between hands should be prohibited, bringing criminal charges is not the way to do it. Nor should they announce spur-of-the-moment prohibitions that not everyone hears or comprehends. Instead, they should devise new rules that players can understand and floors can enforce. I do not envy the rule-makers if they decide to try to accomplish this task. ♠

Scott J. Burnham is Professor Emeritus at Gonzaga University School of Law in Spokane, Washington. He can be reached at [email protected].