A little-known bill that targets alleged online pirates who conceal their identities and has the potential to wreak more harm to privacy rights than good has become federal law.
The so-called Fraudulent Online Identity Sanctions Act was introduced in late 2003 by U.S. Rep. Lamar Smith (R-Texas), folded into the Intellectual Property Protection and
Courts Amendments Act passed in both houses of Congress in December 2004, and signed by President Bush later that month.
It would slap offenders with up to seven years in prison in criminal cases for what the language of the bill calls providing “material and misleading false contact information to a domain name registrar, domain name registry, or other domain name registration authority”—a reference, according to some analysts, to the WHOIS database listing information about domain name owners.
Smith’s co-sponsor for the FOISA was Rep. Howard Berman (D-California), perhaps remembered best for a proposal to allow copyright holders to attack computers suspected of copyright infringement, an idea once notoriously supported by then-Senate Judiciary Committee chairman Orrin Hatch (R-Utah).
“In civil lawsuits, such as when the movie studios or the Recording Industry Association of America (RIAA) sue someone over copyright infringement, the (FOISA) would make it far easier for them to claim $150,000 in damages for each violation,” wrote Internet journalist Declan McCullagh in February 2004.
“The justification? To make it easier to track down miscreants,” McCullagh continued, and went on to quote Smith in his story: “‘The government must play a greater role in punishing those who conceal their identities online, particularly when they do so in furtherance of a serious federal criminal offense or in violation of a federally protected intellectual property right,’ [Smith] said during a hearing in a copyright subcommittee.”
Smith also used his authority as the chairman of that subcommittee – the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property – to block opponents from testifying against the proposed legislation, according to McCullagh.
And he wasn’t the only one trying to sound an alarm about the FOISA. In May 2004, the Electronic Frontier Foundation, the American Civil Liberties Union, the American Library Association, the Center for Democracy and Technology, and Public Knowledge sent a letter to House Judiciary Committee chairman James Sensenbrenner (R-Wisconsin) and ranking Democrat John Conyers (D-Michigan) denouncing a bill the group said would punish Americans seeking only online anonymity and infringe on their free speech rights.
“The WHOIS database requires that individual Internet users, when they register domain names, make their names, home addresses, home phone numbers, and home e-mail addresses available to the world, with no privacy protections,” the letter said. “Users covered by this requirement include human rights activists, corporate whistleblowers seeking to avoid retribution, and ordinary Americans seeking to avoid spam, stalking, or identity theft. As long as WHOIS lacks safeguards to protect their privacy and security, these users will feel compelled to place inaccurate data in the database for reasons that have nothing to do with furtherance of illegal activity.”
Alex Curtis, government affairs manager for the nonprofit advocacy organization Public Knowledge told AVNOnline.com that while the bill’s concept involves chasing infringing websites that distribute copyrighted materials, its language is too loosely worded in places.
“The idea is that you find an infringing website, and you go to the WHOIS register to find out who the person is who owns the website,” he said. “Essentially, it’s using the WhOIS register as a telephone book. And that’s where the penalties come into play. And ‘falsely register’ is kind of loosely defined. It could involve not having an up-to-date registry, which we have a big problem with.”
The bigger problem, Curtis said, is privacy, including that involving whistle-blowers.
“Say a former Ford employee is saying Ford cars aren’t safe; obviously (he) doesn’t want Ford to know who he is, and he’s using a Ford trademark,” Curtis said. “If I’m a (Ford) whistle-blower, I want to tell the public about a problem, but I don’t want to lose my job over it. Now I can’t register my domain (for a whistle-blowing site) without Ford finding out about it. It could probably chill a lot of speech with respect to that.
“And we’re not just talking about famous marks,” he continued. “Anyone who writes something on a Post-it note is a copyright owner. But if someone writes an e-mail and you post it without permission, now that person could sue you for copyright infringement. This isn’t just an issue of piracy.”
Earlier this month, Smith received a Defender of Property Rights award from a group called the Defenders of Property Rights, citing his work with the subcommittee. “Property owners, be they landowners or the owners of intellectual property rights, have no better friend in Congress than Lamar Smith,” said DPR president Nancie G. Marzulla in a formal statement.
“Intellectual property represents a large sector of the economy, employing more than 4 million Americans,” Smith said in a statement, accepting the award. “As our nation continues to shift from an industrial economy to an information-based economy, our economic assets are increasingly based in intellectual property. We must encourage its continued growth and protection.”
