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The Snowe Bill – Pros and Cons

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Snowe SenatorThe new Senator Snowe Bill titled, “Anti-Phishing Consumer Protection Act” is loved by a few companies that have famous brands however it is being protested loudly by some domain name investors and privacy groups. If I had to judge the bill just by the name I would be all for it. Who doesn’t want to take out a phisher trying to steal bank account information! However there is more to the bill then just the name.

The legislation is very effective at allowing government agencies to act quickly. The ability to act quickly is the most important feature to take down a phishing group. A government agency can quickly find out who the owner of a domain name is even if it is behind a proxy service. However when talking with a lot of domain owners they feel the bill may be over reaching and impact them adversely. Not only that, they say the bill is redundant because criminal activity like phishing are already illegal. But in an interview with Computer World an aide for the Senator had this to say, “This is not a regulatory bill but an enforcement bill,” the aide said. “It clearly defines phishing and domain abuses as deceptive practices.” As a result, he added, the FTC wouldn’t “have to waste time in court” proving that phishing qualifies as a deceptive practice from a legal standpoint. So the bill is not completely redundant. The bill could have a lot more features and provisions that would make it more fair. In the DMCA for example it requires a sworn statement made “under penalty of perjury” before a hosting service needs to do anything about a copyright complaint. There is nothing to this effect in this bill. Which means that anyone that files a federal case could get a private whois record. However once again anyone that files a federal case already gets the private whois record because registrars that don’t turn it over are held liable instead.

Those domain investors value their privacy and think one of the key features of the bill is unbalanced, they feel that the speed which a government agency can act to remove whois privacy on a domain is undue process. Some domain investors feel the Consumer Protection bill may be an over aggressive Trademark bill in disguise. ISPs and Businesses can also file Federal cases using the legislation if they feel their trademark or business name is being used in a phishing attack. If they are phishing sure, I am all for it, but if they are doing normal business with a generic domain then I would be against it. Generic phrases and words should never qualify as phishing. I am not sure this bill allows Generic dictionary words and GEO-Domains to be subject this anti-phishing legislation…. well unless they are pretending to be some other company and phishing their customers. I am trying to figure out why so many domain investors fear this bill. I think the best thing to do would be setup a debate between Phil Corwin (ICA) and Paul Martino (CADNA). It would be interesting and informational to hear from both sides at the same time. If you guys are listening, let’s setup the debate. Setting the facts straight will allow us all to focus on what needs to be fixed in this legislation.

The honest domainers feel like they are getting caught in the fishing net like dolphins on a bad tuna hunt. I looked around for people that wrote blog posts about the bill and here are a few that I found; Jaikumar Vijayan of Computer World, John Levine, Michael Berkens, Andrew Allemann, Declan McCullagh of CNET, Elliot Silver, Sahar Sarid, Jothan Frakes, Internet Commerce Association, Amy Graham of CADNA, and Mark Fulton

There are a few misconceptions on both sides of the bill. Some of the people that opposed to the bill are not reading all the details sometimes, I found one domain investor saying, “no more parking, no more revenue, it’s all going to end if this thing goes through”. Which indicates there seems to be a bit of an over reactions by a few people. All the more reason for a debate with rational arguments on both sides. As far as I read the bill there is no way to seize a domain name using this legislation, it only allows for fines of $250 per incident during a violation if someone is found guilty of violating the act.

As the bill currently stands I think there are a number of things that could be introduced to improve it. I don’t think the House has a counter-part bill yet, so if a bill was introduced over there that had those new provisions the bills would need to be merged before going to the president for a vote. I suggest those people that oppose the bill support a new version of the bill in the House. I would definitely add sworn statement made “under penalty of perjury” to the bill.

I will post a transcript of the debate as soon as I arrange it.


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