CircleID

This morning, at 10 am in 2141 Rayburn, the Subcommittee on Courts, the Internet, and Intellectual Property is holding a hearing on "Internet Domain Name Fraud—New Criminal and Civil Enforcement Tools." At that hearing, the Subcommittee will be considering a new Whois bill [PDF] creating new penalties for people who provide false data when registering a domain name.

We need to raise our collective eyebrows at this bill (which was suddenly dropped the evening before this hearing). The title of the bill is the "Fraudulent Online Identity Sanctions Act." (FOISA)

First of all, it includes in the category of "willful" trademark infringements those of a "violator. . [who] knowingly provided material and misleading false contact information to a domain name registrar. . ." This is significant, because monetary damages for trademark infringement can be increased up to three times if the infringement is willful—and usually "willful" is a question left up to a judge. It's also significant that there doesn't appear to be a necessary connection between what the violator has done and the whois data issue.

Secondly, the bill amends the Copyright Act by adding to the "willful" language for damages in that Act the idea that an infringement shall be considered to be willful where "the court finds that the infringer. . . knowingly provided material and misleading false contact information to a domain name registrar." Again, this is significant because willful copyright infringement can mean increased statutory damages awards of as much as $150,000. And the bill ties this amendment to cases of "infringement occuring at or in connection with an online location"—clearly broad language intended to get at P2P file trading. Again, usually courts decide "willfulness" on a case-by-case basis.

This is like sentencing guidelines for intellectual property law.

And, in fact, it is.

The final section of the bill adds a sentencing mandate for "falsification relating to domain names in connection with offenses." Maximum penalty: increased by 7 years if, "in furtherance of that offense," the defendant provided material and misleading false contact information to a registrar.

This is outrageous, and here's why. As a matter of ICANN policy, domain name registrants in gTLDs under contract with ICANN (with certain limited exceptions) are required to provide, and registrars are required to publish online, data about themselves—including phone numbers and email addresses for technical contacts. The vast majority of registrants in gTLDs are small businesses and individuals. Small businesses and individuals worry about privacy and spam, and it is well-known that WHOIS information is regularly mined by spammers.

It is already unfair to force registrants to provide all this data, and as a result many registrants do lie. IP interests view the WHOIS database (an artifact of a gentler, academic age, and not mandated by any law) as their special red telephone information mother lode. So they want to ensure its accuracy by mandating hugely enhanced damages if someone fails to tell the truth. Law enforcement also has this interest.

There are ways to help both IP interests and law enforcement to data by providing special access to approved entities. But it won't be accurate. It costs far too much money for registrars to verify this data, and individuals will, predictably, continue to lie.

As Officer Short Shrift says in the Phantom Tollbooth, we're all guilty, guilty, guilty, and should be sent away for six million years.

By Susan Crawford, Professor, University of Michigan Law School. Visit the blog maintained by Susan Crawford here.

Related topics: DNS, Domain Names, ICANN, P2P, Privacy, Spam, Telecom, Top-Level Domains, Whois