Maryland Governor Calls for Ban on Algorithmic Gambling Targeting

Wes Moore signed nothing. He made a request — that Maryland's legislature prohibit betting apps from using algorithmic tools to identify and target users who show signs of problem gambling. The request is not a law. It is a direction of travel, and the distance between those two things is where the regulatory story actually lives.

The New York Times account that triggered Moore's call described DraftKings using machine learning to segment customers by what the company internally called "elasticity" — a measure of how likely a given user was to increase wagering after receiving a promotional offer. Former employees told the Times the system could identify users displaying patterns consistent with problem gambling. DraftKings denied the characterization directly: the company stated it does not use AI to target anyone based on losses or market to customers showing indicators of potential problem gaming. That denial is on the record. What the underlying data shows is not.

Maine's Gambling Control Unit has since said it is watching the situation. Massachusetts has opened a formal review. Maryland's governor has named the conduct he wants prohibited. Three different states, three different postures, and no common legal framework binding any of them to the same standard.

This is where the structural problem sits. Consumer protection in sports betting is a state function. Each state that licensed mobile wagering did so under its own statutory framework, with its own responsible gambling requirements, and with its own enforcement apparatus. None of those frameworks were written with algorithmic promotional targeting in mind, because the practice at the described scale did not exist when most of them were drafted. Maryland's Governor Moore is not identifying a gap the law forgot to close — he is identifying a gap the law was never designed to address.

The legal standard that would govern a Maryland prohibition, if one were enacted, is not complicated in its structure but is difficult in its application. A state may prohibit a licensed operator from using a specific business practice as a condition of licensure. That prohibition survives preemption analysis so long as it operates as a licensing condition rather than a direct regulation of interstate commerce. The harder question is evidentiary: what conduct, precisely, triggers the prohibition? "Algorithmic and other means" to identify "patterns of problem gambling" is a policy objective stated at a level of generality that would require substantial regulatory translation before any operator could comply with it or any regulator could enforce it.

I have worked through enough enforcement actions to know that the cases which look simple at the press conference tend to arrive at the agency as definitional problems. What algorithm. What pattern. What threshold of "indicators" converts ordinary customer analysis into prohibited targeting. The governor's framing answers none of those questions. A legislature that takes up the proposal will have to.

The applicable standard, in any eventual enforcement proceeding, would ask whether the operator's practice fell within the scope of conduct the licensing statute was designed to prevent — and whether the operator had sufficient notice of that prohibition to conform its conduct. Generality in the statute is the operator's best argument. Specificity in rulemaking is the state's only durable answer.