Falsification of Whois information may incur stiffer penalties

A bill entitled the Fraudulent Online Identity Sanctions Act (HR 3754) has been introduced to the House of Representatives. The bill seeks to amend the trademark and copyright statutes in an effort to impose stiffer penalties on persons who commit a crime using a website registered under a false name. Specifically, the act would allow intellectual property (IP) owners to obtain larger monetary damages from operators of websites that distribute protected material without authorization, if they falsified information when registering the domain name used in committing the violation. The act would also increase prison terms for felonies relating to the falsification of information by up to seven years.

The bill is the result of complaints from copyright and trademark owners who are unable to identify cybersquatters and owners of pirate sites because of false domain name contact information. Despite complaints by IP groups and Congress, the Internet Corporation for Assigned Names and Numbers (ICANN) has failed to enforce its policy of terminating contracts with domain name holders who submit false information. The sponsors of the bill hope to provide more incentive to both registrars and registrants to enter and maintain correct registration information.

Privacy advocates oppose the bill, stating that much of the information contained in Whois databases (eg, home and email addresses) should not be made available unless the registrant so desires. The American Civil Liberties Union agrees, pointing out that the US Constitution "recognizes that you have a right to anonymous communication".

On the other hand, supporters of the bill argue that correct Whois information is necessary for tracking and preventing online crimes, and can and should be a valuable tool for IP owners and law enforcement officials. Supporters also point out that the act would not affect people who are solely trying to safeguard their privacy, since the submission of false information is only treated as criminal in situations where the domain name secured through false contact information is used in furtherance of criminal activity.

An ICANN spokesman stated that the organization has not yet decided whether to support the bill.

Timothy J Kelly and Erica R Halstead, Fitzpatrick Cella Harper & Scinto, New York