False Domain Info May Mean Jail

Congress may crack down on businesses and people who provide false information when they register a website, proposing huge fines and extra jail time for those who violate copyright and trademark law.

By Ryan Singel

http://wired.com/news/politics/0,1283,62198,00.html?tw=wn_tophead_1

Backers say the bill, known as the Fraudulent Online Identity Sanctions Act, targets only those who lie when submitting data to domain-registration databases and then go on to break federal laws.

Co-sponsors Reps. Lamar Smith (R-Texas) and Howard Berman (D-California) hope the law will help copyright holders track down those who sell counterfeit merchandise on the Web, set up "phisher" sites to con unsuspecting Internet users into turning over credit card and PIN numbers, or illegally offer copyright works for download.

They also hope the bill will curb malicious spammers and prevent the registration of domain names that are knockoffs or misspellings (such as http://www.wirred.com) of legitimate companies.

The House Judiciary Subcommittee on Courts, the Internet and Intellectual Property, which Smith chairs, held a hearing on the bill Wednesday.

Mark Bohannon, general counsel for the Software & Information Industry Association, who testified on behalf of industry groups including the Recording Industry Association of America and the Motion Picture Association of America, said the bill was "narrowly tailored to target bad actors."

"Bottom line is that studies show the vast number of domain-name registrations with false information are engaged in fraud and other abuses," Bohannon said. "It’s time for Congress to take some basic steps."

Some online activists say the law is draconian — it proposes seven more years in prison for committing a felony if a website with fake contact information is involved. More importantly, activists say, the bill threatens one of the core principles of the Internet: anonymous speech.

"There is no place else that we have a speaker’s registry, where you have to give your name and address before you are allowed to be out on the street corner or over at a public bulletin board," said Wendy Seltzer, a staff attorney at the Electronic Frontier Foundation. "But here we are saying you have to give all your information, including home address and phone number, before you register an Internet domain."

"The people we are concerned with are not going to give correct whois information no matter what the sanctions are," Seltzer said, referring to the software utility that pulls up domain registration information. "So we are burdening free speech without other benefits and chilling people who may have important product criticisms or whistle-blowing stories to tell."

Some critics say the deal is a giveaway to the recording and motion picture industries, pointing out that Berman’s district includes Hollywood, and that the entertainment industry contributed $222,791 to his 2002 re-election campaign.

The law does not, however, make it illegal to provide false information to domain registrars, though the agreement between registrars and the Internet’s regulatory body, the Internet Corporation for Assigned Names and Numbers, does require them to verify identification.

Many domain registrants do lie, including shady businessmen, individuals afraid of spam and those who want to remain anonymous.

Mike Steffen, a policy analyst for the Center for Democracy & Technology, is not surprised at people’s reluctance to fork over personal information that can easily be searched.

"At a time when people are concerned with things like identity theft, people tend to be reluctant to put personal information in a database that is completely public," Steffen said.

Steffen added that in September, when the same congressional committee held similar hearings, his group suggested some alternative solutions to the committee, including tiered access to whois information and regulations that take into account whether a domain is commercial or not.

What worries both Steffen and Seltzer is a provision in the bill that designates as "willful" any violation of a trademark committed in conjunction with false domain registration. Willful violations allow a court to level up to a $150,000 statutory fine.

That change means a blogger who sets up a domain with fake information and unintentionally uses a trademarked phrase as a domain name could face huge fines under the new law, according to Seltzer, who added that under current law a court most likely would only issue an injunction in such a case.

Bohannon dismisses that scenario, saying the "willful" designation only applies after an individual has been convicted of a trademark violation.

He added that the law is not intended to curb free speech and suggested that anyone who wishes to register a domain pseudonymously should register using a proxy service, such as the ones offered by Go Daddy Software, among others.