FC: Replies to Ben Edelman's report on "whois" database errors

[Declan McCullagh <declan () well com>]

Previous Politech message:

"Ben Edelman's report on intentional errors in 'whois' database"
http://www.politechbot.com/p-03520.html

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Date: Tue, 14 May 2002 04:26:22 -0400
To: politech () politechbot com
From: "Robert L. Ellis" <rellis () internet-attorneys com>
Subject: Fwd: FC: Ben Edelman's report on intentional errors in "whois" 
database

Declan,

Ben has performed a valuable service in his studies on domain name
misinformation and unrelated-content misdirection, so I hate to
nitpick.  But since part of this discussion is about draft legislation that
claims to address the problem (HR-4640) we should try to be accurate about
legal terminology.

In his case study of NicGod, Ben refers to registrants who "intentionally
provide systematically inaccurate contact information to registrars for
inclusion in the WHOIS database," and writes that "[s]uch fraud can include
the entry of invalid street addresses and phone numbers . . . ."

Entering such misinformation may be repugnant, but it is not
fraud.  Nothing in Ben's study that I could find documented any cases of
fraud arising out of the false information given to the
registrars.  Indeed, Ben does not accuse these folks of doing anything
illegal as far as I can tell.

A similar misunderstanding seems to characterize discussions of
HR-4640.  Contrary to reports, that bill would NOT criminalize the practice
of entering false domain registration information.  Providing false or
misleading information to a registrar would be a crime ONLY if  done "with
intent to defraud."   The "intent" provision renders the bill more or less
useless (and I predict it will die in committee), since "intent to defraud"
would be virtually impossible to prove.  The "intent" of the NicGod people
and their ilk is probably not to defraud, but rather to protect their
anonymity while engaging in their (currently legal) bottom-feeding activity.

In any event, criminal penalties seem rather extreme.  Wouldn't it be
easier simply to provide that the domain name would be forfeited?

And for that matter, as long as the WHOIS database is a public record and
can be exploited by spammers and con artists, why should it be wrong to
enter false information?  Why not simply enter all false information except
for email contact, register for five years, change the email contact to a
fake one, and then just before renewal time change it back?  (Assuming one
is willing to risk losing the domain via a UDRP.)  It's no different than
an unlisted number.  If spammers and con artists are willing to engage in
guerilla tactics, why not the rest of us?

- Bob Ellis

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Ellis Venable & Busam
A Partnership of Professional Organizations
33 North High Street, Columbus, OH 43215-3076
+1 614.221.2422 phone   221.5244 fax
www.internet-attorneys.com

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From: admin () consumer net (admin)
To: <edelman () law harvard edu>
Cc: <declan () well com>, <info () archive org>, <brewster () alexa com>
Subject: FW: Ben Edelman's report on intentional errors in "whois" database
Date: Tue, 14 May 2002 08:04:30 -0400

And so who gave Archive.org (Owned by Amazon.com) permission to
reproduce all the web pages?  .... Or doesn't the DMCA apply to
companies like Amazon?

Russ Smith

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From: "D McOwen" <dmcowen () bellsouth net>
To: <declan () well com>
Cc: <edelman () law harvard edu>
Subject: RE: Ben Edelman's report on intentional errors in "whois" database
Date: Tue, 14 May 2002 07:24:39 -0400

Hi Declan, Mr Edelman,

The main question I have had since this obviously fraudulent cottage
Industry has flourished is "whois" backing and funding all of the money to
buy and hold all these ASCII characters for ransom?
It is also obviously infinitely deep pockets, anyone guess as to how much
money has been thrown in to kidnap the Internet?

It is sobering to finally see that maybe the focus of leaders is starting to
shift from going after benign and for the good computer technology to the
actual "criminal" element out there preying on the benefits of the Internet
and computers.

Dave McOwen
http://www.freemcowen.com

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