Speculative Fiction

info@reason.com (A.B. Berens) — Fri, 26 Sep 2003 00:00:00 EDT

You've probably never heard of John Zuccarini, a 53-year-old Internet domain name speculator. But his arrest early this month has broad implications for the Internet and for intellectual freedom. Zuccarini was charged with registering misleading domain names. He will be the first person prosecuted under a provision of the PROTECT Act, more commonly known the "Amber Alert" Act.

You may have visited one of Zuccarini's web sites after misspelling a common domain name like Disneyland.com. According to the FTC.gov website Zuccarini owns more than 5500 such domains, and if you happened to land on one, your visit was almost certainly unpleasant. Zuccarini blitzes visitors with advertising for adult websites. Closing one browser window might cause three more to pop up, until the only escape for many web users is to force their browser, or even their whole computer, to shut down. Zuccarini is widely reported to have made millions of dollars off such web traffic.

Zuccarini will be prosecuted under a provision called "Truth in Domain Names", which makes it a criminal offense to use "misleading domain names" to send minors to websites with obscene or pornographic content. If convicted, he faces up to four years in prison. That he should be the first person tried under the "Truth in Domain Names" provision is no accident; Zuccarini already has a long history of having his domain name ownership contested. Dozens of his names have been lost in the arbitration system set up by the Internet Corporation for Assigned Names and Numbers (ICANN) to deal with disputes over domain names. And in 2002 a US District Court fined him $1.8 million for diverting web surfers "from their intended destination to one of his sites, and hold(ing) them captive while he pelted their screens with a barrage of adult-oriented ads," according to FTC.gov.

The escalation of actions against Zuccarini mirrors broader movements to punish those who reserve or use domain names "inappropriately". For years companies have successfully won domain names in arbitration with ICANN and the WIPO by claiming that the domain name was similar to a registered trademark they held. In 1999 President Clinton signed into law the Anticybersquatting Consumer Protection Act (ACPA), which provided for damages of up to $100,000 for domain names registered in "bad faith", as defined in part by how a domain name is used.

While it's easy to understand what motivated the ACPA and "Truth in Domain Names" laws, their effects on free speech and property rights cannot be overlooked. The very idea behind all such statutes—that registering a domain name can expose one to civil, or even criminal, liability—is frightening. Dot.com, .net, and .org domain names have from the very beginning been registered on a first-come, first-serve basis. Even today, anyone can reserve any domain name not currently held by another entity, so long as the domain meets basic technical standards, such as limits on length and acceptable characters. Because of this open system, and because domain name registrars are under no obligation to do "background checks" before selling you a name, anti-cybersquatting statutes make it illegal to purchase property that is lawfully sold to you.

Even if the domain name itself would seem too generic to be actionable, what you choose to publish there can be grounds for forfeit. In 2000 the WIPO handed the domain name Madonna.com over to the famous singer because the original owner showed "bad faith" in using it to attract users to a pornographic web site. Would Madonna have been able to take the domain name if it contained religious tracts posted by Christians? Not a chance. Public opinion about the value of pornographic content cost businessman Dan Parisi a valuable piece of virtual property.

Should the jurors in the Zuccarini case be as easily swayed by their feelings about Internet opportunists as the (presumably more principles-guided) WIPO tribunal was in the Madonna case, Zucarrini stands almost no chance of successfully arguing his case on the basis of free speech or property rights. A glace at the headlines turned up by a Google news search makes it clear how difficult it is for this unsavory character to prevail:

"US man accused of luring kids to porn sites"

"Man charged over sex site scam"

"Net criminal arrested in domain deceit"

Only the London based news service The Register, while showing no sympathy for Mr. Zuccarini, understood the larger threat to freedom of speech posed by his prosecution:

The problem is that the (Truth in domain names) Act is on some very shaky territory. What is a "misleading" domain? Who decides what is "obscene"? What constitutes "harmful to minors"? The vast majority of pop-up ads and front pages of porn sites are relatively clean. To see something obscene, you need to click through to a different page—but can someone really be held responsible for another's actions?

What about many of the sites that Zuccarini has linked to that have a prominent warning saying "If you are under 18, do not enter"? Of course kids do enter, but can you hold someone else responsible for that? If you can, it sets a very nasty precedent—suddenly someone else can be held responsible for what you do. That way madness lies.

Internet domain names are important because the right to keep and use them means people have a place to say what they want to say. If the government—any government—has the ability to kick people off domains and throw them in jail because they don't like how the property is being used, then your freedom to get your message across in the Internet age is severely limited.

As usual, the government has sought to expand its powers by attacking the worst among us. But should they succeed in sending Zuccarini to jail, anyone who registers a domain name or starts a weblog will have to gamble that their virtual stake isn't seen as offensive enough to prosecute.

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