[registrars] Legal Concerns

[Michael D. Palage]

Hello All:

I wanted to bring to everyone's attention, particularly those registrars
located in the United States, two events which occurred last week that you
really need to follow closely.

The first event was the mark-up of the Fraudulent Online Identity Act (FOIA)
in the House Judiciary this past Wednesday, please see the attached pdf
document for this latest markup. This proposed bill if enacted into law
would provide for enhanced criminal sentencing (doubling of maximum
imprisonment term or the addition of 7 years, which ever is less) in which
false domain name Whois information is involved in connection with certain
felonies involving copyright and trademark infringement. This bill does not
provide criminal penalties merely for false domain name whois information
independent of any felony activity prescribed in the proposed bill.

This bill provides criminal sanctions for "violator(s), or a person acting
in concert with the violator,knowingly provided or knowingly caused to be
provided materially false contact information to a domain name
registrar,domain name registry,or other domain name registration authority
in registering,maintaining,or renewing a domain name used in connection
with" felony copyright and trademark infringement.

The primary focus of this bill is directed to registrants or resellers that
provide false whois information in connection with other felony activity
involving trademark and copyright infringement. However, one of the concerns
I previously raised was in connection with the aspect of potential liability
for registrars since in limited circumstances they provide whois directly to
thick registries such as in .biz, .info and .org. This is NOT the case in
connection with thin registries such as .com and .net where registrars
provide NO whois registrant data to the registry operator.

The good news is that the mark-up bill now provides a safe harbor provision
which explicitly states that "nothing in this subsection shall impose any
new liability on a domain name registrar." However, this safe harbor DOES
NOT apply if "the domain name registrar knowingly provides materially false
contact information to a domain name registry or other domain name
registration authority."

This leads into the second major event that occurred this week.
Specifically, the revised Whois compliance mechanism that ICANN announced in
connection with it report to the DoC as required by the MoU, see
http://www.icann.org/whois/wdprs-report-final-31mar04.htm. Unlike the
previous reporting mechanism which a number of registrars reported was
cumbersome and problematic, the new mechanism is much more streamlined
process. The two most important features in the new process is the ability
of the original compliant to follow-up on its original compliant and report
back as to whether the registrar corrected the problem. Previously
complainants had no mechanism to follow-up on their original complaint. The
other important feature, is that ICANN is notified directly in connection
with those complainants which report that the problem has not been timely
corrected. Under the previously reporting mechanism it was difficult for
ICANN to track to registrar compliance.

The new ICANN tools should help registrars in their compliance efforts.
However, there is a potential downside that registrars need to be aware of
should their whois enforcement compliance lapse. Specifically, should the
proposed FOIA bill become law, the failure of an ICANN accredited registrar
to timely correct a claim of false or inaccurate whois data via may
potential subject them to liability under the proposed bill. Moreover,
because there will be a documented record submitted to the Whois complaint
(most likely an IP attorney acting on behalf of their client) and ICANN,
there is the potential to establish a record of non-compliant activity.

I will keep everyone apprised of developments regarding this bill, and I
would appreciate any feedback regarding the new Whois reporting tool.

Best regards,

Michael D. Palage







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