GamingLawyer - Your Lawyer for Everything Gaming & Gambling Online
Online Gambling, Online Gaming, Poker, Casino Gaming, US and International Legal, Business and Economic Consulting. Technology planning services, online payment systems consulting. Over 12 years of experience with all aspects of online gaming and gambling integrated with the most current legal analysis capabilities and economic/financial planning and analysis
Call me or text me @ 585-230-5511
Follow by Email
Monday, February 1, 2016
New York Bill Proposes Backdoor on Encrypted Phones
If passed, the bill would require that all smartphones sold and leased in the state of New York as of Jan. 1, 2016 have the capability of being decrypted or unlocked by the manufacturer.
Recently, there have been several battles in the encryption debate, which stands to undermine the privacy of consumer devices. The latest is a bill proposed by New York state assemblyman Matthew Titone, which aims to have encryption backdoors added to all smartphones in the state.
The bill was initially introduced in June 2015, months after Apple said it will no longer unlock its devices for the police, even with a search warrant. If passed, the bill which is currently with the consumer affairs committee, would require that all smartphones sold and leased in the state of New York as of Jan. 1, 2016, have the capability of being decrypted or unlocked by the manufacturer.
“Lost cell phones are going to be an easy way for people to get into our lives, and I think putting a backdoor on the cell phone is a bad idea,” Yorgen Edholm, privacy advocate and CEO of private cloud company Accellion, told Legaltech News.
He added, “I think every time law enforcement uses it against the bad guys, the bad guys are going to use it against 100 good guys. I think it’s going to be one to 100 ratio of catastrophic privacy losses compared to maybe making it a little bit easier to catch the criminals, and I don’t think it’s going to be very effective because [the criminals] are going to use more secure methods.”
Smartphone manufacturers could be fined as much as $2,500 per device for failing to comply.
The proposed bill states: “The sale or lease in New York of a smartphone manufactured on or after [Jan. 1, 2016] that is not capable of being decrypted and unlocked by its manufacturer or its operating system provider shall subject the seller or lessor to a civil penalty of two thousand five hundred dollars for each smartphone sold or leased if it is demonstrated that the seller or lessor of the smartphone knew at the time of the sale or lease that the smartphone was not capable of being decrypted and unlocked by its manufacturer or its operating system provider.”
The bill argues that the kind of encryption that is available in iOS 8/9 and the more recent versions of Android may help privacy, but can block access to evidence and "severely hampers" law enforcement.
“The security is always something that scares people much more than the privacy, but it’s much easier to lose privacy than it is to guarantee security,” said Edholm. “Everybody talks about terrorist security, and so far, I haven’t seen any report that [decrypting] cell phones have prevented a terrorism case.”
He added, “There are tons of things that [terrorists] can do to kind of sidestep this and the bad guys will do that and the normal guys are going to get their privacy violated.”
The bill has not yet been voted on by state assembly or senate. However, some experts say that if passed, such a law could lead to New Yorkers buying encrypted phones in another state, which could potentially drive business away from New York retailers.
“Weakening encryption with ‘backdoors’ will only increase cybersecurity risks. Hackers will inevitably find ways to exploit them. In addition, it’s an ineffective security measure because terrorists will simply find other ways to communicate discreetly,” David Jay, president of David Jay's Green Room Studios, told Legaltech News. “Since this would be a New York state law, encrypted devices could be easily purchased in neighboring states and would hurt the New York economy.”
He added, “Since 9/11, we have seen an erosion of our privacy in the name of security. While the issue of terrorism is a valid concern for the American people, the government is using reports of terrorist ‘threats’ as a canard to manipulate the public and justify their actions.”
Apple has expressed opposition to the bill, arguing that it will leave unavoidable gaps in its security, making it easier for hackers to gain access to consumers’ devices, as well as their data.
In fact, in a statement on the company’s privacy website, Apple’s CEO Tim Cook assured consumers that Apple has “never worked with any government agency from any country to create a backdoor in any of our products or services. We have also never allowed access to our servers. And we never will.”
He further stated, “Our commitment to protecting your privacy comes from a deep respect for our customers. We know that your trust doesn’t come easy. That’s why we have and always will work as hard as we can to earn and keep it.”
Titone’s bill supports a previously distributed whitepaper, in which New York District Attorney Cyrus Vance demanded that encryption be outlawed to make law enforcement easier.
The whitepaper suggested that “the federal legislation would provide in substance that any smartphone manufactured, leased, or sold in the U.S. must be able to be unlocked, or its data accessed, by the operating system designer.”
Opposition to the decryption proposal has argued that making devices impregnable to the government lessens the devices’ security, and “thus increase the possibility of a bad actor unlawfully accessing device data.”
Vance said that “the loss of personal security would be minimal,” adding that “there is a cost-benefit analysis to be considered: The loss in personal security that would be occasioned by the proposed statute must be weighed against the gain in societal safety that it would create.”
“The problem with the cell phone is that my whole life is on that phone,” said Yorgen. “When authorities say they will not only be listening to my landline conversation but also my cell phone, that’s my life and I don’t think I’m okay with that.”
He said authorities will argue that they only want access to certain information, but “what I worry about is that now in order to get to my cell phone, and the records of who I talk to, they will also get the record of my banking, my browsing history, and other sensitive information, and that’s what I call my life.”
Altman is described by the Globe and Mail as a “close friend” of Amaya CEO David Baazov and someone who “wore a number of hats as an outside consultant” to the company. The report notes that “[t]here has been no indication from FINRA or the AMF of any wrongdoing by Mr. Altman”.
The report does not appear to represent any new development, but rather additional information regarding the launch of the AMF inquiry in December 2014.
Bevy of public information creates high investigative hurdle
Before diving into what we know about the AMF and FINRA investigations, two things are worth noting:
The common characterization of Amaya’s stock having “more than doubled” in advance of the announcement is technically correct but reductionary to the point of being misleading. A more accurate range of the movement driven by the acquisition speculation would be from $8 to $12.
The movement of Amaya’s stock during the period in question can be tracked reasonably tightly to publicly-available information.
May 15: Amaya reports reasonably strong earnings for 1Q14. The company also announces new credit facilities that give the company access to some $300mm in funds. Critically, the terms of the new credit provide the lenders with the ability to purchase up to 4 million shares of Amaya at CAD$15 per share – even though the stock is trading at around CAD$8 at the time.
May 16: During an earnings call, Amaya executives make several commentssuggesting a major acquisition is a possibility (more on that below).
May 23: The first speculation of the PokerStars purchase appears on Stockhouse: “has anyone heard the rumour Amaya may be buying PokerStars.net…someone I know high up at a major brokerage firmy mentioned this to me the other day…could this be what’s behind the sudden move…any thoughts?”
May 24: CalvinAyre.com – a site regarded as well-connected within the global online gambling industry – publishes the first article speculating that Amaya was angling for a PokerStars takeover.
Looking back at the activity starting with the earnings release on May 15, it’s relatively easy to see how someone paying attention could connect the dots to a major acquisition.
And while those dots may not have led to PokerStars directly, (i) there are only so many major online poker platforms available and, (ii) any major acquisition would reasonably have been expected to spark upward interest in Amaya.
As for those dots: They start on the 15th when Amaya announces that they’ve opened up new credit facilities that brings the total they can draw to north of $300mm.
That’s a large pile of cash for a company whose market cap at the time was something in the neighborhood of $500m.
And part of the financing agreement for the new debt involves Amaya granting the lender 4 million share warrants at CAD$15 – nearly double the price of AYA on the day the debt deal was announced.
On the next day’s earnings call, Amaya executives are asked by two separate analysts about the motivation for amassing such a large war chest. Note that both analysts speak of the acquisition as a given:
Eyal: Okay, good. Obviously, you’ve expanded your capacity. It’s fairly significant, between the amount of cash you have on the books and the actual debt facilities you’ve announced last night. Is there any more you can say outside of just saying it’s strategic acquisitions? It seems like it’s a fairly sizeable amount. You have capacity for north of $300 million of cash at this point.
David Baazov (Amaya CEO): All I’d really comment is the reality is at this time, we are bolstering the balance sheet. Historically, we’ve grown via organic growth as well as via acquisition. As I stated on the call, we are looking at this from a strategic perspective.
Ralph: Okay. Again, to the extent you can give some color, on the strategic acquisition, are you going to be looking at increasing your footprint in Europe? Is it going to be land-based and/or interactive?
David: I would just say that our focus is interactive and it’s global.
Robert: No, the 4 million warrants that are provided alongside the mezzanine debt.
Daniel Sebag (Amaya CFO): It’s part of the overall return negotiated between the lender and the borrower.
And Baazov’s opening remarks can be read – at least in hindsight – as a clear preview that a major acquisition was in the works:
Finally, yesterday, we announced the debt refinancing, adding additional cash to our balance sheet for working capital and corporate purposes. We believe we are now very well positioned to execute on strategic initiatives, including supporting our organic growth, and we also have the flexibility to capitalize on strategic acquisition opportunities that may arise.
Acquisitions have been an integral part of our strategy since 2011. However, we are selective. At this time, we would really be examining opportunities that would significantly bolster our solutions offering while providing value to our shareholders.
During the first quarter, we announced the hiring of Marlon Goldstein as our new Executive Vice President of Corporate Development and general counsel. Marlon was a principal shareholder in the corporate and securities practice at the international law firm of Greenberg Traurig, where he was co-chair of its gaming practice and was focused on corporate and securities matters, including mergers and acquisitions, securities offerings, and financing transactions.
A large amount of ready cash with
A company that has grown almost exclusively through acquisitions, and
A major lender that wants Amaya share warrants at nearly double the current share price
… and it’s not hard for a picture of a transformative acquisition to emerge by May 16 based completely on publicly-available information.
What’s known about FINRA’s Amaya investigation
According to a report in The Globe and Mail on February 10, the Financial Industry Regulatory Authority (FINRA) is interested in what relationship, if any, existed between Amayaand some 300 investors who booked handsome profits following Amaya’s blockbuster acquisitionof PokerStars last summer.
The Globe and Mail reported that FINRA contacted Amaya in December 2013 with a request for information regarding the company’s connection to a number of investors who took a position in Amaya in advance of the acquisition.
FINRA did not comment for the Globe and Mail story.
The Globe and Mail did not appear to have directly reviewed the request, instead referring to sources who had “read the document” and “people familiar with the request.”
It’s unclear who provided the information to the Globe and Mail and why they chose this point in time – some two months after the request was made – to move the story forward.
The inquiry by FINRA is not directly connected to or coordinated with an ongoing investigation being conducted by Quebec’s AMF, although both are broadly centered around the acquisition of PokerStars.
What’s known about the AMF investigation
The investigation timeline
December 10 (time unknown): Agents from the AMF, accompanied by the RCMP, visit the offices of Amaya, Canaccord Genuity and Manulife Financial. All three offices are searched. AMF officials reportedly requested and received a list of trading activity from Canaccord.
February 11: The Globe and Mail reports that the AMF is “examining the trading activities of the Manulife brokers and their family members at the branch in Dorval, which is west of Montreal.”
February 17: The Globe and Mail reports that an alert from Manulife to the AMF about trading in Amaya by a group of Manulife brokers is “believed to have prompted the AMF” to launch the investigation.
March 6: The Globe and Mail reports that the warrant served to Amaya by the AMF in December “included a request for records of communications and business dealings with the company’s long-time adviser Yoel Altman,” citing “people familiar with the investigation” and noting that “[t]here has been no indication from FINRA or the AMF of any wrongdoing by Mr. Altman or the other investors.”
Public statements from Amaya and other relevant parties
Statement released following the Forbes report
“To provide clarification on a media report, Amaya Inc. (the “Corporation”) (TSX: AYA) confirmed that the Corporation and its officers are cooperating with the Autorité des marchés financiers, the securities regulatory authority in the Province of Quebec (the “AMF”), in an investigation with regards to trading activities in Amaya securities surrounding the Corporation’s acquisition of Oldford Group in 2014. (Dec 11)
To the Corporation’s knowledge, this does not involve any allegations of wrongdoing by the Corporation. Amaya will continue to cooperate, if and as requested, consistent with our practice to always cooperate with regulatory authorities.
The Corporation will continue to monitor the investigation if and as it proceeds. The investigation has had no impact on Amaya’s business operations, employees or companies.” (Dec 11)
Original statement to Forbes from Amaya spokesperson Eric Hollreiser
“Amaya is cooperating in an investigation by the Autorité des Marchés financiers (AMF), the securities regulatory authority in the Province of Quebec. It is not appropriate for us to provide any further details at this time.” (Dec 11)
Comments from CEO David Baazov
“I would say that the investigation for us is something that we anticipated given that there was a historical stock run-up in advance. I think the AMF is looking into something that they should be looking into and looking into what has led to that stock run-up,” Baazov said.
“We have no evidence to believe that there’s any wrongdoing by any officer, director, or employees and we’re cooperating with the investigation.” (BNN, Jan 17)
“Intertain Group Limited (“IT-T”, “Intertain” or the “Company”) feels it is necessary to comment on the trading activity in its common shares today. The Company became aware through news reports of the investigation by the Autorité des marchés financiers (AMF), Quebec’s securities regulatory authority, regarding certain trading activities of Amaya Gaming Group Inc. Intertain stated today that it is not aware of any connections to Intertain of the investigation and it has not been contacted by any security regulatory or law enforcement authority.” (Dec 12)
Statement from Manulife Financial
“We are aware of the actions taken yesterday by the AMF and RCMP and are fully cooperating with this investigation.” (Forbes, Dec 11).
Statement from Canaccord
“We’re cooperating fully with the routine request for information.” – Canaccord spokesperson Scott Davidson (Star, Dec 12).
“I can assure you that Canaccord Genuity is not the subject of this investigation, nor is any member of our capital markets group […] This is strictly a request for information related to individual trades in our client accounts.” – Chief Executive Officer Paul Reynolds (Montreal Gazette, Dec 15).
Statement from the AMF
“Yesterday’s operation is part of a AMF investigation on that company. I can’t go further for the moment.” – AMF spokesperson Sylvain Théberge (Forbes, Dec 11).
“This search was part of a wider investigation on which we have no further comment,” – AMF spokesperson Sylvain Théberge (La Presse, Dec 12).
When is a raid not a raid?
The Forbes story (and Forbes’ subsequent follow up) both originally referred to the action as a “raid.”
But that description was subsequently removed from both stories, replaced by “showed up” and “investigation.”
That change, along with the gaps between the event and the first report and that report and Amaya’s statement, all suggest a far less aggressive action on the part of authorities than “raid” might bring to mind for the typical reader.
A source inside Canaccord characterized the action as “fairly routine” and a part of “almost every major transaction” to BNN reporter Amber Kanwar.
As for the presence of the RCMP, the agency told the Toronto Star that “it simply provided security for the AMF, rejecting the characterization of its involvement as a raid.”
Immediate impact on stock prices
Amaya stock plummeted on news. On the day following the news (Dec 13), Amaya openeddown sharply, followed by a quick – but only partial – recovery. As of close on Dec 13, the stock was off some 18% from the day’s opening price.
Intertain shares tumbled in tandem. Intertain was not named in connection with the investigation.
But the company – part-owned by Amaya – saw its stock price shrink over 25%, apparently in reaction to the news. Manulife also holds a significant position in Intertain.
Intertain subsequently released a statement saying in part that “it is not aware of any connections to Intertain of the investigation and it has not been contacted by any security regulatory or law enforcement authority.”
Patrick Horan of Agilith Capitaltold Advisor.ca that “I don’t think there’s a lot at risk for either company,” reasoning that a few individuals within the companies will be the ultimate targets of investigators.
A coalition of politically powerful American Indian tribes is taking a hard line against iPoker legislation in California that would license racing associations, wary it would constitute an erosion of the tribes’ constitutionally guaranteed exclusivity to engage in casino gambling.
Seven tribes led by the Pechanga Band of Luiseño Indians of Temecula are standing firm against any online poker bill that would license tracks, contending publicly that it would violate voter-approved public policy against expanded gambling in California.
But on a private, esoteric level, Indian leaders are concerned about the long-term sustainability of tribal gambling, which in California and elsewhere is used to fund government programs.
They view any potential erosion of the constitutionally guaranteed exclusivity tribes have to engage in casino gambling as a threat to tribal governance and self-determination.
It’s an issue not confronted by state officials and commercial stakeholders in the iPoker debate.
For many tribes, caution is the watchword
“Tribes should be careful not to sell out to corporate interests,” Pechanga Chairman Mark Macarro said. “They need to evaluate things in regard to what is best for their tribe and, at the same time, what is best for Indian country.
“Does the proposal sell out principles that to tribes are important? There are certain things we should look out for. It can’t just be about the deal. Certain things shouldn’t be negotiated.”
Macarro’s sentiments are apparently shared by six other tribes in the coalition:
Agua Caliente Band of Cahuilla Indians in Palm Springs
Barona Band of Mission Indians in Lakeside
Lytton Band of Pomo Indians near San Francisco
Sycuan Band of the Kumeyaay Nation in San Diego
Viejas Band of Kumeyaay Indians of Alpine
Yocha Dehe Wintun Nation near Sacramento
They do not see card room involvement in online poker as a threat to tribal casino exclusivity. The California card room industry dates back a century, long before compacted tribal gambling.
Split on tracks fundamentally threatens online poker efforts
Consensus among tribes is considered crucial to getting iPoker legalized in California. And the depth of the concern tribes have on the tracks may very well spell defeat for an online poker bill that will require a 2/3rds vote of the legislature.
“No iPoker in California is the clearly preferable option” to legislation licensing tracks, Agua Caliente Chairman Jeff Grubbe said.
Pechanga counsel Steve Bodmer issued a similar warning at last week’s iGaming Legislative Symposium in Sacramento.
“If you’re prioritizing … racetracks being involved is much more problematic for my client as well as numerous other tribes we work with,” Bodmer said. “This is a big issue because it’s an unnecessary expansion of gaming in California.
“Are we making a principled decision or are we making a business decision?”
The Pechanga coalition has the political clout to block iPoker legislation.
“Without Pechanga, there will be no bill,” a state official who requested anonymity toldPechanga.net.
The view from the other side
One should be careful not to suggest other tribal leaders in partnership with online vendors and anxious to launch poker websites are any less concerned with the future sustainability of their indigenous communities.
Several tribes see the Internet as an important and urgent step in the evolution of tribal gambling. And many tribes view extending licenses to the thoroughbred racing industry as a necessary political step in getting online poker out of the California legislature.
No tribal leader cares more about the well-being of his citizens than Bo Mazzetti, chairman of theRincon Band of Luiseño Indians, partners with Caesars Entertainment.
The same can be said of Robert Martin and Lynn Valbuena, leaders of the Morongo and San Manuel bands of mission Indians, who are partners with Amaya/PokerStars.
Mazzetti, Martin, Valbuena and others do not believe licensing tracks as a threat to the future prosperity of their communities.
“There’s no question the race tracks have to be eligible for licensing,” Mazzetti said. “That’s from the governor’s office. It’s going to be in there or there’s no bill.”
And Martin warns it is not likely all tribes would reach consensus on bill language.
“All of the tribes are not going to get together,” Martin said. “It just is not going to happen.”
Where it goes from here
There are four iPoker bills pending in the state Legislature.
AssemblymanMike Gatto’s AB9 limits licenses to tribes and card rooms.
Assemblyman Reginald Jones-Sawyer’s AB167 extends license eligibility to the tracks.
Identical “shell” bills sponsored by Assemblyman Adam Gray and Senator Isadore Hall, chairmen of Government Organization committees through which a bill must pass, do not address license eligibility.
Proponents are right to point out that online poker is a state asset and a commercial venture to be taxed and regulated by the state. It is not gambling under the Indian Gaming Regulatory Act.
But if an online poker bill comes out of the legislative cycle which ends in 2016, lawmakers will have to convince tribal leaders the future sustainability of their communities will not be sacrificed to the cause.
That may not be easy.
Image credit: Cheryl Ann Quigley / Shutterstock.com.
Dave Palermo - Dave Palermo is an award-winning metropolitan newspaper reporter. He has written about American Indian governments for more than 20 years, working as an advocate for several tribes and tribal associations. He also has co-authored books on gambling and gambling law.