Information and technology law implementation on enforcing criminal sanctions for online gambling

Gambling is one of the most important problems considered by all levels of Indonesian society. The emergence of the Internet of Things (ITE) Law in Indonesia has resulted in the development of a new crime that is rife, namely gambling carried out online. This article discusses several formulations of problems including law enforcement for online gambling crimes based on the ITE Law and how criminal sanctions can be imposed on online gambling criminals. The article explains the enactment of the principle of lex specialis derogat legi generalis which applies more specific rules than general rules. This is an open access article under the CC BY-SA license.


INTRODUCTION
The State of Indonesia is a state of law as stated in the Constitution of the Republic of Indonesia Year 1945 (UUD NRI 1945), which regulates all aspects of Indonesian people's lives.This is expressly stipulated in the Explanation of the 1945 NRI Constitution that "The State of the Republic of Indonesia is based on law (rechsstaat), not based on mere power (machstaat)" (Kansil, 2001).The law here has a very important meaning in this aspect of life as a guide for human behavior in relation to other humans.In the State of law, law is used as the main basis in moving every aspect of life in society, nation and state.In addition, law is also used as a means of social control, so that the law exists to keep society in universally accepted patterns of behavior.In such a function, the law not only maintains what is and is accepted in society but outside of that the law can still carry out its other function, namely by making changes in society (Soeroso, 2006).
The law is tasked with integrating and coordinating the interests of each individual in society.So it is hoped that the interests of one another can go hand in hand and not contradict each other.To achieve this goal can be done by limiting and protecting these interests.Although all behaviors and actions have been regulated in laws and regulations, crime is still rife in this country, one of which is gambling (Abdusalam, 2009).
Gambling has existed since ancient times as human civilization developed.Encyclopedia Britanica notes that gambling has been invented since primitive times, for example the Bushmen in South Africa, the Aborigines in Australia and the Indians in America, where they have known the game of dice.Then gambling developed since the time of Ancient Greece.Various kinds of gambling games and techniques that are very easy make gambling quickly develop to all corners of the world including Indonesia.Gambling has existed since ancient times as human civilization developed.Encyclopedia Britanica notes that gambling has been invented since primitive times, for example the Bushmen in South Africa, the Aborigines in Australia and the Indians in America, where they have known the game of dice.Then gambling developed since the time of Ancient Greece.Various kinds of gambling games and techniques that are very easy make gambling quickly develop to all corners of the world including Indonesia (Tabah, 2001).
Gambling is one of the most important problems considered by all levels of Indonesian society.Not a few people are disturbed in terms of safety and comfort.Its existence began to penetrate and disturb all levels of society, making it difficult for law enforcers to respond to it.This is not new for the community due to the reality of poverty in Indonesia, as one of the factors causing the mushrooming of gambling.Gambling is one option that is considered very promising profits without having to struggle to work.Gambling is considered the right choice for small people to make money more easily.Social life will inevitably face social problems.The problem is a social problem if it has negative consequences in the association of life in society (Dhahri, 2017).
The development of technology in the current era of globalization is so rapid, especially in the information technology sector that makes people easily able to receive and provide information to the wider community.The benefits of information technology in addition to having a positive impact can also have a negative impact, namely providing opportunities to be used as a means of committing cyber crime.Cyber crime is defined as an illegal activity with computer intermediaries carried out through a global electronic network (Sunarso, 2009).
Judhariksawan argues that cyber crime is an activity that utilizes computers as a medium supported by a good telecommunications system, namely dial up system, using telephone lines, or wireless systems, which use special antennas such as wireless (Judhariksawan, 2005).Cyber crime is also related to the term cyber space.Cyber space is seen as the world of computer-based communication.Cyber space is also considered a new reality in everyday life known as the internet.The working system of cyber space can be said to change a distance and time that was once limited now becomes unlimited.Abuse in a cyber space is then referred to as cyber crime (Maskun, 2013).
Based on the ease of the digital world as explained above, in society a new crime has emerged that is rife, namely gambling carried out online.Information technology is increasingly developing by following the changing times, so that various kinds of crimes committed using the internet appear, both crimes committed individually and crimes committed in groups.The existence of the internet triggers the emergence of many new crimes commonly referred to as cyber crime, which until now the definition has many versions.According to British police, cyber crime is any kind of use of computer networks for criminal purposes and/or high-tech criminals by abusing the convenience of digital technology (Wahid & Labib, 2005).
The criminal act of gambling or participating in gambling is regulated in Article 303 and Article 303 bis of the Pre-Amendment Criminal Code (KUHP).Initially, the regulation in Article 303 bis of the Criminal Code has been regulated in the criminal provisions of Article 542 of the Criminal Code but based on the provisions in Article 2 paragraph (4) of Law No. 7 of 1974 concerning the Control of Gambling, it has been changed to the criminal provisions regulated in Article 303 bis of the Criminal Code.So with the issuance of Law No. 7 of 1974, the threat of punishment previously regulated in Article 542 of the Criminal Code changed, namely from imprisonment for a maximum of one month or a fine of up to four thousand five hundred Rupiah to imprisonment for a maximum of four years or a fine of up to ten million Rupiah as stipulated in Article 303 bis of the Criminal Code (Lamintang, 1990).
Furthermore, looking at the principle of playing gambling as stipulated in Article 303 of the Criminal Code is defined as each game, which is likely to win generally depends on luck alone, also if the probability of winning is greater because the player is smarter or more capable.Gambling also includes all betting agreements regarding the decision of a race or other game not held by those who participate in the race or play, as well as all other bets (Prodjodikoro, 1986).That the article is not clearly regulated regarding gambling carried out through electronic or online media, thus causing a legal vacuum.
Online gambling activities have been sought by the government to be eradicated so that online gambling activities can be minimized as early as possible and do not create the impression that online gambling is not monitored by law.The proof is that the Government in Indonesia has issued regulations to fill the legal vacuum, so it is regulated by the Government through a more specific law, namely Law of the Republic of Indonesia No. 19 of 2016 concerning amendments to Law No. 11 of 2008 concerning Information and Electronic Transactions (ITE Law).In this law, it has been explained that gambling transactions carried out with electronic media are one of the criminal offenses that get a prison sentence for the perpetrators.This crime is regulated in Article 27 paragraph (2) of the ITE Law, which reads as follows: "Any person intentionally and without rights distributes and/or transmits and/or makes accessible electronic and/or gambling information".
The Where Article 27 paragraph (2) of the ITE Law can only be imposed on the actions of someone who transmits, distributes, and makes accessible the content of gambling content electronically so that the actions of someone who only participates in online gambling games cannot be subject to rules related to this article.
Meanwhile, lately social media has been shocked by game streamers who are suspected of promoting online gambling with saweran or donations.The increasing prevalence of online gambling is certainly troubling the community.Where online games are a form of entertainment that is currently very popular among young people, so it is very vulnerable for young people to watch game streamers who promote online gambling through social media (Ayuningrum, 2023).Online gambling is categorized as a cyber crime because in committing its crimes, online gambling uses computers and the internet as a medium to commit these gambling crimes.Gambling is basically contrary to the norms of religion, decency, and morals of pancasila, and can endanger the survival of society, nation and state.Gambling is a violation of social culture in Indonesia (Amar, 2017).
So, it is clear that gambling besides harming itself, can also be poisoning and will result in the loss of the economy of society.So that researchers are interested in discussing the implementation of the ITE Law in law enforcement of gambling crimes through online media.Although there are many and various types of gambling, gambling through online media can be done by not having to hide in a safer place so as not to be known to the local community or the authorities, because in gambling through online media, gamblers will easily play it by sitting back this gambling game can be done.
Based on the background description above, this study discussed several formulations of problems including law enforcement for online gambling crimes based on the ITE Law and how criminal sanctions can be imposed on online gambling criminals based on the ITE Law and the Criminal Code.

METHOD
This research is a normative legal research, which examines problems with consideration from the point of view in the form of relevant laws and regulations.This research uses the case approach method, conceptual approach, and statutory approach.Legal materials used are primary legal materials in the form of legislation, official records or minutes in making laws and regulations, judges' decisions, secondary legal materials in the form of all publications about law which are unofficial documents, and tertiary legal materials in the form of dictionaries, encyclopedias, journals, newspapers, and non-legal publication materials.

RESULTS AND DISCUSSION Law Enforcement of Online Gambling Crimes Based on the ITE Law
According to Jimly Asshiddiqie, law enforcement is the process of making efforts to uphold or function legal norms in real terms as a code of conduct in traffic or legal relations in public and state life.Soekanto (2016), said law enforcement a process, in essence, is the application of discretion that involves making decisions that are not strictly regulated by legal rules, but have an element of personal judgment.Interference with law enforcement may occur, if there is a mismatch between the "trinity" of values, rules and patterns of behavior.Law enforcement does not merely mean the implementation of legislation, although in reality in Indonesia the tendency is so, so the definition of law enforcement is so popular .
Law enforcement can also be viewed from the point of view of the subject and the point of view of the object of law enforcement.The angle of the subject of law enforcement can be divided into two, namely in a narrow sense and in a broad sense.In a narrow sense, in terms of its subject, law enforcement is only interpreted as the effort of certain law enforcement officials to guarantee and ensure that a rule of law runs as it should.In ensuring the enforcement of the law, if necessary, the law enforcement apparatus is allowed to use coercive force.In a broad sense, the law enforcement process involves all legal subjects in every legal relationship.Anyone who carries out normative rules or does something or does not do something based on the norms of the applicable rule of law, means that he is exercising or enforcing the rule of law.
Furthermore, the understanding of law enforcement is viewed from the point of view of its object, namely in terms of the law.In this case, the understanding also includes broad and narrow meanings.In a broad sense, law enforcement also includes the values of justice contained in the sound of formal rules and the values of justice that live in society.However, in a narrow sense, law enforcement only involves the enforcement of formal and written regulations.With the description above, it is clear that what is meant by law enforcement is more or less an effort made to make the law, both in a narrow formal sense and in a broad material sense, as a code of conduct in every legal act, both by the legal subjects concerned and by the law enforcement apparatus officially given the task and authority by law to ensure the functioning of legal norms that apply in life Society and state Law serves as the protection of human interests.In order for human interests to be protected, laws must be implemented.Legal enforcement can take place normally, peacefully, but it can also occur because of violations of the law.In this case the broken law must be enforced.It is through law enforcement that the law comes true.In enforcing the law there are three elements that must always be considered, namely legal certainty (rechtssicherheit), expediency (zweckmassigkeit) and justice (gerechtigkeit) (Mertokusumo, 2016).
Online gambling is a game of chance that is played using a computer or smartphone with a connection to the internet network and the game uses bets in the game.Online gambling is currently very much played by the public, because people consider online gambling a profitable game and make money so easily, safely and quickly, compared to playing gambling as usual.Online gambling is an illegal act regulated in Article 27 paragraph 2 of the ITE Law.
Currently, the ITE Law is still relevant to the development of society, especially in terms of gambling, because the ITE Law also regulates the prohibition on the dissemination of content containing gambling, but in terms of effectiveness, of course, it must be supported by law enforcement officials, namely the Police.With regards to law enforcement issues actually lies in the factors that might influence it.These factors have a neutral meaning, so the positive or negative impact lies in the content of these factors.These factors, are as follows (Mertokusumo, 2016): 1) The legal factor itself, which in this paper will be limited to the law only.
2) Law enforcement factors, namely parties who form and apply the law.
3) Factors of facilities or facilities that support law enforcement.4) Community factors, namely the environment in which the law applies or is applied.5) Cultural factors, namely as the result of work, creation and taste based on human will in the association of life.Based on these five factors that affect law enforcement, it can be concluded that several factors hinder the enforcement of the ITE Law against perpetrators of gambling crimes carried out online.First, internal factors in the form of human resource factors.The lack of mastery and understanding of Police personnel in the information technology sector can affect the performance of the Cyber Crime Unit because online gambling relies heavily on internet facilities as a means of committing crimes.The ability of Police personnel, both in mastery in the information technology sector, is not balanced with the rampant cases related to online gambling that occur in the community because online gambling can occur anytime and anywhere so that this causes there are still many online gambling cases that have not been handled by the Cyber Crime Unit Police.Other internal factors in the form of facilities and facilities are important factors to support the ability to work, good abilities will not be optimal if they are not supported by good facilities as well.In handling online gambling cases, one of the difficulties faced is finding evidence because this crime is not committed in real life but is carried out in cyberspace, this makes it difficult to track dealers and players by the Police Cyber Crime Unit (Siregar, 2017).
Second, external factors in the form of server factors which are places to play online gambling in the form of websites.Servers created by online bookies are often placed in countries that legalize gambling such as Cambodia, Thailand, the Philippines and Singapore, this is what prevents the Cyber Crime Unit throughout the Polda in Indonesia to track the bookies holding the online gambling server.Then factor in the use of Virtual Private Network (VPN), after meeting the online gambling site, the Cyber Crime Unit will immediately report to the Ministry of Communication and Information to block the site.Efforts to block these sites often fail to suppress the non-occurrence of online gambling crimes again, because these online gambling players use VPN applications to unblock online gambling sites that have been blocked by the Ministry of Communication and Information.The ease of downloading this VPN application causes the Police Cyber Crime Unit to have difficulty in handling and eradicating online gambling crimes.Finally, the community factor that sometimes already knows that there is someone who is indicated to be doing online gambling activities and even knows the places where online gambling is done, but the community in this case is passive and does not dare to report that there are people who do online gambling games and there are places used for online gambling activities (Siregar, 2017).
Law enforcement of the ITE Law against online gambling crimes can come from the community which aims to achieve peace and a sense of mutual security within the community.Here the role of the community has a great influence on handling criminal cases, especially gambling, but public concern to assist the Police in uncovering gambling crimes is so lacking.In this gambling case, the one who feels the impact of gambling the most is the family because the family will feel the impact of gambling if the perpetrator loses in playing gambling.The community should be more sensitive and participate to assist the Police in handling the eradication of gambling crimes in the vicinity.Sometimes there are also some people who are worried about gambling, but on the other hand, there are also people who are indifferent to it.
In carrying out law enforcement efforts of the ITE Law against online gambling crimes, it can be done with penal and non-penalty efforts.Penal efforts are carried out in accordance with the application of articles 303 and/or 303 bis of the Criminal Code to the perpetrators who then examine them according to the Criminal Procedure Code and applicable laws and regulations, similar to the criminal act of online gambling which has been clearly regulated in Article 27 paragraph 2 jo.Article 45 paragraph 1 of the ITE Law.The task of the police in this case begins with a report from the local community that there has been an event suspected of gambling, be it online gambling or gambling in general.After hearing and receiving the report, several police officers immediately launched an investigation.Most reports received by the police are in the form of oral reports or via mobile phones (telephone network), and in accordance with the provisions in article 103 paragraph 2 of the Criminal Procedure Code, the report is then recorded by the investigator and signed by the whistleblower and investigator.
Then non-penal efforts in the form of prevention efforts (preventive) and countermeasures (repressive).The purpose of preventive methods is to provide motivation, guidance and direction to the community, especially about the consequences of gambling, as well as about the legislation so that the public understands and is aware of it.One form of effort to overcome gambling criminals is through cyber patrol is a cyber patrol used by the Cyber Crime Unit (in Kepolisian) to supervise cyber crime.This cyber patrol is a form of law enforcement efforts carried out by the Cyber Crime Unit in preventing and supervising actions containing gambling in cyberspace.Cyber patrol in carrying out its duties uses internet media as a supporting facility in patrolling cyberspace, this is to monitor the activities of someone who is indicated to be carrying out online gambling activities or games and track websites that have gambling content.The Cyber Crime Unit team in an effort to prevent activities related to online gambling games coordinates with the Ministry of Communication and Information to block websites that are indicated to carry out online gambling game activities, if it is proven that there are online gambling game activities on a website, the Cyber Crime Unit will directly coordinate with the Ministry of Communication and Information regarding the blocking of the website to prevent someone from playing online gambling because gambling will sooner or later harm people who play in it (Darmadi et al., 2019).
While repressive efforts are methods that determine how and actions that need to be done with the aim that perpetrators of online gambling crimes can return to the midst of society to live a decent and humane life as before.This repressive effort can be carried out by the Police in order to realize the enforcement of the ITE Law against online gambling perpetrators by conducting routine raids, blocking online gambling sites, providing skills, and making arrests.

Criminal Sanctions That Can Be Imposed on Online Gambling Criminals Based on the ITE Law and the Criminal Code
As mentioned earlier that regarding the rules of gambling, it is regulated in the Criminal Code precisely in Article 303 paragraph (1) to paragraph (3) and 303 bis.For gambling agents regulated in Article 303 paragraph (1) to paragraph (3), while for those who participate in gambling regulated in Article 303 bis.In addition, there are rules of Law Number 7 of 1974 concerning the Control of Gambling.Although the rules of the Act only changed regarding the threat of punishment in Articles 303 paragraph (1), 542 paragraph (1), 542 paragraph (2), changed Article designation 542 to 303 bis, and repealed the ordinance dated March 7, 1912.
In paragraph (1), it is explained that it is threatened with imprisonment for a maximum of 10 (ten) years or a maximum fine of Rp. 25,000,000 (twenty-five million Rupiah) whoever without obtaining permission.In paragraph (2) it is explained that if the person guilty of committing the crime in carrying out his livelihood, he can be deprived of the right to carry out that livelihood.In paragraph (3) the so-called gambling game is any game where in general the possibility of making a profit depends on mere luck, also because the player is better trained or more proficient.It includes any betting on the decision of a race or other game not held between those participating in the race or play.So is all other gambles.Apart from that, Article 303 bis paragraph (1) of the Criminal Code also regulates gambling, the article states that it is threatened with a maximum imprisonment of 4 (four) years or a maximum fine of Rp. 10,000,000 (ten million Rupiah).
Then after the issuance of Law Number 1 of 2023 concerning the Criminal Code in the eighth part of Article 426 paragraph (1), it is stated that a maximum of 9 (nine) years shall be sentenced to any person who without permission offers or gives the opportunity to play gambling or makes a living or participates in gambling companies, offers or gives the public the opportunity to play gambling or participate in gambling companies, Regardless of whether there is a condition or procedure that must be met to use the opportunity, and make participating in gambling games a livelihood.Furthermore, Article 427 states that everyone who uses the opportunity to play gambling that is held without a permit shall be punished with a maximum imprisonment of 3 (three) years.
Based on the rules mentioned above, there are no sanctions regarding gambling through online media, but specifically regulated in Article 27 paragraph 2 jo.Article 45 paragraph 2 of the ITE Law threatens parties who intentionally distribute or make accessible online gambling, with a maximum prison sentence of 6 (six) years and/or a maximum fine of 1 billion Rupiah.Then after the issuance of Law Number 1 of 2023 concerning the Criminal Code in the eighth part of Article 426 The context of gambling in the Criminal Code includes the act of betting that does not get permission on the results of a race or game that is not held by competition participants or players and all other forms of betting.In the general explanation section of the Gambling Regulation Law, it is explained that gambling activities are activities that are contrary to morals, decency, religion, and pancasila.The act of gambling is also seen as an act that can endanger people's lives and national interests.Gambling is considered a disease of society from generation to generation that is difficult to eliminate.Therefore, this legal basis categorizes all forms of gambling crimes as crimes that carry a threat of punishment for violators.
Based on the rules regarding criminal acts, it is clear that gambling is prohibited by criminal law rules, because it has fulfilled the formula as explained, Since the enactment of Government Regulation Number 9 of 1981, the government has prohibited the granting of licenses for gambling, all types and forms of gambling are illegal activities and can be subject to criminal sanctions accompanied by their implementation of criminal procedural legal proceedings (Isnaini, 2017).
The threat of a criminal act as described in Article 303 Paragraph 1 which in that article contains elements without permission, then gambling can be classified into two types, namely gambling which is not a criminal offense if the implementation has obtained prior permission from the competent authority, and gambling which is a crime, if the implementation is without prior permission by an authorized official (Isnaini, 2017).Soesilo (1986) stated that his comments on Article 303 of the Criminal Code which is the object of gambling games are not all games, but each game that bases the hope of winning generally depends on luck alone, and if also that hope becomes greater because of the intelligence and habits of players.What includes gambling is betting on the results of a race or other game that is not held by those who participate in the race or play it as well.All other bets commonly called gambling are such as playing dice, playing blackjack, playing jemeh, ulo frogs, roulette, baccarat, keles chips, shakes, tombola keplek and so on and also includes totalizers in horse races, football matches.However, it does not include gambling, namely dominoes, bridge, ceki, koah, pei and so on which are commonly used to entertain.Further explained by Soesilo (1986) who was convicted according to this article was: 1) Holding or giving the opportunity to play gambling as a living, so a bookie or other person who as a company opens gambling.People who interfere in this matter are also punished.Here there is no need for gambling in a public place or for the public, although in a closed place or closed circles is enough, as long as the gambling has not obtained permission from the authorities; 2) Deliberately holding or giving opportunities to play gambling to the public.Here it is not necessary as a livelihood, but must be in a public place or that can be visited by the public.Even if there is permission from the authorities, it is not punished; 3) Play gambling as a livelihood.Soesilo (1986) ended his comments on the article, that people who play gambling are punished according to Article 303 of the Criminal Code, while those who participate in the game will be subject to punishment as explained in Article 303 bis of the Criminal Code.
Based on the problems studied in this study are about gambling carried out online, it is necessary to see from the rules of the ITE Law because in this case in the rules there are special provisions regarding online gambling crimes.Internet technology facilitates human life both in communication, conducting electronic transactions, shopping, conducting video teleconferences, conducting justice electronically.Technology makes public relations unlimited, technology development has the opportunity to do business in the field of technology business, but must uphold the principle of healthy business competition and the principle of prudence.However, behind the good development of the internet, there are people who abuse their intelligence to commit unlawful acts (Karo-Karo & Prasetyo, 2020).
The government has tried to catch up with the law from technology, in 2008 the government has issued Law Number 11 of 2008 concerning Electronic Information and Transactions as amended into Law Number 19 of 2016.Online gambling there are online gambling service providers and users of online gambling services need a server computer that can serve requests to access online gambling on a large scale, online gambling service owners also have online gambling websites which can be accessed by users of gambling services online.Online gambling service providers in Indonesia sometimes choose to rent servers located outside the jurisdiction of the country of Indonesia to avoid law enforcement, online gambling service providers tend to choose to rent servers located in countries that allow gambling, within the server This is stored all player data, a list of accounts used and all data related to this online gambling service (PURNAWINATA, 2021).
Establishing a person as a criminal offender must be fulfilled with the elements of the criminal act alleged to him.Therefore, gambling service providers and online gamblers can be subject to Article 27 Paragraph 2 Jo Article 303 of the Criminal Code.Regarding the determination of the provision of online gambling services, subjective elements must be met and the objective of online gambling must be met with elements of jurisdiction.The subjective element of online gambling is an element inherent in the subject of law, in the case of gambling online is any person and intentionally and without rights.While the objective element of online gambling is to distribute, transmit, make accessible, constitute electronic information or documents, and contain gambling (PURNAWINATA, 2021).
Threats against violations of Article 27 paragraph (2) of the ITE Law are mentioned in Article 45 paragraph (2) which states "Any person who intentionally and without rights distributes and/or transmits and/or makes accessible Electronic Information and/or Electronic Documents that have gambling content as referred to in Article 27 paragraph (2) shall be punished with a maximum imprisonment of 6 (six) years and/or a maximum fine of IDR 1 billion".As we know that what is meant by "distribute" can be interpreted as sending or disseminating information electronically to other people or other parties, and "making accessible" is defined as an act that causes information or documents to be known to others or the public.Then in Article 63 paragraph (2) of the Criminal Code states that "If an act falls under a general criminal code, it is also regulated in a special criminal rule, then only that particular one is applied".The article explains the enactment of the principle of lex specialis derogat legi generalis which applies more specific rules than general rules (Yulianto & Guntari, 2022).
Based on this explanation, the provisions for legal sanctions against online gambling crimes in Indonesia are regulated in Article 303 of the post-amendment Criminal Code, Article 426 paragraph (1) of the preamendment Criminal Code (Law Number 1 of 2023) and Article 27 paragraph (2) of the ITE Law, both against users and as organizers of the gambling.

CONCLUSION
The ITE Law enforces laws against online gambling, allowing individuals to be criminally liable for promoting or conducting gambling activities.Police use preventive and repressive countermeasures, including warnings, counseling, and cyber surveillance.Penalties for online gambling crimes can range from 10 years imprisonment and a fine to 1 billion Rupiah.The ITE Law is a special rule, requiring a lex specialis derogat legi generalis principle to apply specific rules.
explanation of Article 27 paragraph (2) of the ITE Law is further regulated in a joint decree of the Minister of Communication and Information of the Republic of Indonesia, the Junior Attorney General of the Republic of Indonesia, and the Head of the National Police of the Republic of Indonesia Number 229 of 2021,