[registrars] FOISA

[Cute, Brian A.]

SUMMARY OF U.S. HOUSE HEARING ON INTERNET DOMAIN NAME FRAUD

At the House Subcommittee on Courts, the Internet and Intellectual Property
Hearing on February 4, 2003, representatives and witnesses discussed the
proposed adoption of the "Fraudulent Online Identity Enforcement Act," a
bill which would amend the Lanham Act (or U.S. Trademark Act) by providing
for additional criminal and civil penalties for domain name fraud.

Specifically, the bill contains proposed penalties for violations of the
Lanham Act, and specifically for infringement, where an infringer or the
person acting in concert with the infringer "knowingly provided material and
misleading false contact information to a domain name registrar, domain name
registry or other domain name registration authority in connection with the
online location or in maintaining or renewing such registration."  The bill
also calls for enhanced sentencing for willful provision of false contact
information in connection with an underlying criminal conviction.

Testimony and Q&A centered on the issue of inaccurate WHOIS data.  Testimony
was offered by the International Trademark Association (INTA), the Copyright
Coalition on Domain Names (CCDN), the International Anticounterfeiting
Coalition (IACC) and Alice's Registry.  INTA cited examples of inaccurate
WHOIS data, alleged that many accredited registrars have been lax in
investigating and cleaning up registrations and alleged that ICANN has not
taken any concrete steps to improve WHOIS accuracy.  CCDN characterized the
proposed legislation as narrowly tailored since it targets only "bad actors"
(take your own reading) and pointed to the Anti-Cybersquatting Consumer
Protection Act, the Truth in Domains Names Act and the CAN-SPAM Act as
providing precedent for Congress to legislate against "abuse of the domain
name registration system" in this instance.  IACC stated that the WHOIS
"problems" were the result of "inadequate obligations" on Registrars to
check information and the ease of applicants to submit false information and
to continue using registered domain names.  Rick Wesson testified that he
had proposed a service "Fraudit" to increase WHOIS data accuracy at the 2002
Shanghai ICANN meeting but was surprised that "registrars were somewhat
angered to learn that someone had come up with a solution to the Whois data
accuracy problem."  (I wasn't at the Shanghai meeting so I don't understand
the reference.)  He went on to state that he realized "ICANN, gTLD
registries and accredited registrars had no intention, desire or incentive
to audit their registrant data" and therefore withdrew his product from the
registrar WHOIS accuracy space.  He then stated his support for the proposed
legislation but added that the legislation has no provision barring
registrars from accepting fraudulent registrant data or requiring a
registrar to verify registrant data.  He went on to add that with "simple
regulation that registrars validate the accuracy  of their Whois data, then
law-enforcement can uphold the law." 

Testimony can be accessed at the following:
http://www.house.gov/judiciary/courts.htm

First, I would strongly recommend that registrars take their own counsel on
the interpretation of the proposed legislation, a copy of which is attached.
I also would take issue with many of the aspects of the points made in the
testimony.  My sense is that the proposed legislation has momentum and that
it would behoove registrars to weigh in in the appropriate manner.


   <<smittx_057_xml.PDF>> 
Let me know if you have any questions.

Regards,
Brian
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