[registrars] Legal Concerns
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 Attachment:
DOMAIN NAMES Domain name WHOIS bill HR 3754.pdf |