Confidential and proprietary US Proposed Whois Legislation Fraudulent Online Identity Sanctions Act (“FOISA”)

2 Confidential and proprietary Stated Purpose To help law enforcement agencies and IP owners track down operators of “online locations” where criminal activity or infringement might be taking place. Applies to Whois information in all TLDs – gTLDs,.us and all others.

3 Confidential and proprietary Why is Legislation Needed? ICANN has not been enforcing registrar accreditation agreements which require registrars “verify” information submitted by DN registrants. –Although applies to.us and all ccTLDs, sponsors do not distinguish between a ccTLD and gTLD. Assumes those committing crimes and infringement also lie about Whois information.

4 Confidential and proprietary What does the Law do? The law: –Amends trademark act (Lanham Act) –Amends U.S. Copyright Act –Amends US Federal Sentencing Guidelines

5 Confidential and proprietary Amendment of Trademark and Copyright Acts Act proposes to make all infringements (whether trademark or copyright) “willful” where registrant “knowingly” submits material and misleading false “contact information.” Both TM and Copyright law in the US punish infringement, whether done willfully or accidentally. If Willful, however, the infringements are subject to more harsh penalties. Therefore, false Whois information would increase penalties on existing infringements.

6 Confidential and proprietary Amendment to US Sentencing Guidelines Applies only if a felony (serious crime) has already been committed. Increases maximum prison sentence by 7 years, if in furtherance of the offence, the violator knowingly provided material and misleading false contact information.

7 Confidential and proprietary What the proposed law does not do. The law itself does not make having false Whois information a crime in and of itself. The law does not impose any liability on gTLD or ccTLD registries or registrars for having false Whois information in their databases. The law does not add any requirements for registries or registrars to verify Whois information.

8 Confidential and proprietary Status of Proposed Law FOISA is a proposed law still in its early stages. Proposed law will be “marked up” by legislators after input from other legislators (and lobbying groups – i.e., law enforcement and IP owners) Next draft of law will be voted on by Congress committee, then sent to full Congress. If passes, Congress, then must also be approved by Senate and signed by President.

9 Confidential and proprietary Likely Proposed Changes by IP Owners IP groups will recommend that law is amended to: –Delete reference to “misleading”, so that info has to only be “false and material”, not “false, material and misleading.” –Clarify meaning of “online locations.” Does this include domain names that are not used for Websites, but rather . –Have penalties apply not just for original submission of false Whois information, but also for failing to update contact information.