The Honorable Lamar Smith
Chairman, House Subcommittee on Courts, the Internet and Intellectual Property
The Honorable Howard L. Berman
Ranking Member, House Subcommittee on Courts, the Internet and Intellectual Property
Re: H.R. 3754, the Fraudulent Online Identity Sanctions Act
Dear Chairman Smith and Ranking Member Berman:
We urge you to reject H.R. 3754, the Fraudulent Online Identity Sanctions Act when it comes before your committee for markup. While we recognize that trademark and copyright holders should be able to protect their trademarks or copyrights, this bill severely curtails the right of anonymous speech on the Internet and would impair privacy. The bill is certainly an improvement over prior versions in that it first requires a conviction before invoking penalty enhancements. However, that does not completely respond to our concerns.
The bill would amend the Trademark Act and Copyright Act to provide that in the case of a violation, the mere fact of providing misleading and false contact information to a domain registrar constitutes ""willfulness,"" transforming the offense into a more severe civil penalty, or possibly a criminal act. A penalty enhancement is also added, so that a violation can result in up to seven years additional imprisonment. Thus, for example, an anonymous web site designed to protest the energy company Esso could devise a parody of the Esso trademarked sign for use on the web site. The web site owner could then be prosecuted for trademark infringement, and possibly face up to seven more years in jail simply because he registered his domain (for example, stopesso.org) and failed to provide his correct name and contact information.[1]
The Supreme Court has recognized that the First Amendment protects the right to anonymity,[2] and that this right is part of ""our national heritage and tradition.""[3]
The right to anonymity is necessary to encourage a diversity of voices and to shield unpopular speakers:
""Anonymity is a shield from the tyranny of the majority. . . .It best exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation. . .at the hands of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.""[4]
The right to anonymous speech has a long and proud history in our country, dating back to its founding. Far from being an outmoded concept, anonymity is especially critical to a thoroughly modern medium of expression: the Internet. The rise of the Internet has created an opportunity for dialogue and expression on a scale and in a manner previously unimaginable. As the Supreme Court has recognized, the Internet is a new and powerful democratic forum in which anyone can become a ""pamphleteer"" or ""a town crier with a voice that resonates farther than it could from any soapbox.""[5]
Recognizing the speech-enhancing and equalizing features of the Internet, the Supreme Court has accorded it the highest degree of constitutional protection.[6] This rigorous protection extends to speech conducted anonymously on the Internet.[7]
The impact of this bill on such a fundamental right could be severe: Consider an activist who wishes to criticize a company, and uses a modified company logo (such as the Esso example above) to make the point. She may not wish to have her name and address available for the world to see (and beat a path to her door), particularly if she holds a sensitive position in the company. Or, she may live in a community that depends upon that company for its livelihood, and not wish to face the ire of her community. Regardless of her reasons, she has a right under the First Amendment to ""publish her pamphlet"" anonymously -- in this case set up an anonymous domain and speak her mind. If this bill passes, she could possibly face up to seven years' additional imprisonment if a court finds she has violated a trademark or copyright.
Because this bill applies only regarding violations of trademark and copyright, it is somewhat narrower than an outright ban on anonymous web sites. That, however, does not resolve the difficulty: in the example above, suppose the company claims a trademark in its name or logo, and sues the domain holder. If the domain holder loses, she can be criminally or civilly liable, and, for registering an anonymous domain name, receive up to an additional seven years in prison. While it appears that the domain name must be used ""in commerce,"" selling T-shirts with slogans, soliciting donations for the site, or even linking to a ""commercial"" site would suffice. It is not necessary that the web site be in direct competition with the trademark holder (for example, in the Esso example, the critical web site does not need to be also selling energy in competition with Esso).
Or, consider the person who registers a domain name to criticize the Church of Scientology, and publishes a portion of the Church's writings on the web. The Church is well-known for claiming copyright violations. If the Church is successful, not only will the domain holder have committed a copyright violation, he may also be criminally liable. Like the situation with the trademark violation, a site that is used ""in commerce"" provides little protection. In both cases, the bill provides for a penalty enhancement, and presumes a willful violation simply because the domain name was registered anonymously.[8] It is not clear why a copyright or trademark holder should be relieved of the burden of proving willfulness. Registering a domain name under a false name may be evidence of willfulness, but should not be conclusive. At the very least, the presumption of willfulness should be removed, and the trademark or copyright holder should have the burden of proving the anonymous registration was done for the purpose of perpetrating a violation of the trademark or copyright.
A more recent example of a company attempting to use copyright or trademark law to squelch dissent arose in the Diebold case. Diebold manufactures voting machines. Many experts had questions about the security of these machines. These concerns reached a crescendo after several documents were posted online that contained information regarding vulnerabilities in Diebold voting software, including email warnings from Diebold technicians about various security flaws. Diebold subsequently threatened to sue various people and groups who either hosted or provided weblinks to those documents, claiming their actions constituted copyright infringement. If the web sites were registered to people who wished to retain their anonymity, their actions could have been transformed into a criminal violation or enhanced civil penalty, even though they were doing the public a service by exposing the flaws.[9]
Because of the increased criminal penalties and the transformation of a civil offense into a criminal one or enhancing the civil penalty by virtue of the presumption of ""willfulness,"" this bill has the potential to chill speech and threaten privacy. A speaker, such as Greenpeace in the Esso example, must either register the domain with all accurate information, or hope that it does not get sued and lose a trademark or copyright case. To do so would increase the possible penalties. In the end, speakers are more likely to avoid speaking if their anonymity is important to them, rather than risk ruinous civil liability or criminal penalties. This is not a hypothetical case - one need only look at some of the cases brought under the Digital Millenium Copyright Act and the Trademark Dilution Act to find instances where speakers were silenced under the guise of copyright or trademark law.
Finally, this bill is premature. The Department of Commerce and the International Corporation for Assigned Names and Numbers (ICANN) have been considering the question of what information needs to be gathered for domain registrants, and what information needs to be made available to the general public and law enforcement. Questions about privacy and anonymity are also being considered in this larger context. The resolution of these issues may well make this bill unnecessary.
We urge you to reject this bill, and preserve the rights of privacy and anonymity guaranteed under the First Amendment.
Sincerely,
Laura W. Murphy
Director
Marvin J. Johnson
Legislative Counsel
[1] The actual trademark uses the letters ""s"" instead of dollar signs. Esso actually sued Greenpeace for this trademark violation. Clearly, the intent here was to stifle speech with which the company disagreed.
[2] See, McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995)(""anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent"").
[3] Watchtower Bible & Tract Soc'y of New York, Inc. v. Village of Stratton, 536 U.S. 150, 166 (2002).
[4] McIntyre, 514 U.S. at 357 (citation omitted).
[5] Reno v. ACLU, 521 U.S. 844, 870 (1977).
[6] Id. (""no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium"").
[7] See, e.g., Doe v. 2theMart.com, 140 F.Supp.2d 1088, 1093 (W.D. Wash. 2001) (""the constitutional rights of Internet users, including the right to speak anonymously, must be carefully safeguarded""); Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999) (confirming the importance of the ""legitimate and valuable right to participate in online forums anonymously or pseudononymously""); ACLU v. Johnson, 4 F.Supp. 2d 1029, 1033 (D.N.M. 1998), aff'd 194 F.3d 1149 (10th Cir. 1999) (striking down law ""that prevents people from communicating and accessing information anonymously""); ACLU v. Miller, 977 F.Supp. 1228 (N.D. Ga. 1997) (striking down law prohibiting anonymous Internet speech). This right to anonymous speech has even been recognized in the context of commercial speech. See NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998)(applying the Central Hudson test to uphold anonymity in a job advertisement).
[8] The effect of presuming willfulness is that (1) it relieves the copyright or trademark owner from having to actually prove it; and (2) by presuming willfulness, the offense is transformed into either a criminal or enhanced civil penalty.
[9] After a great public outcry, Diebold has since decided not to pursue copyright violation charges against these people and groups.