D URING LAST YEAR S election, were you hop- were owned by the - PDF document

ELECTION LAW JOURNAL Volume 8, Number 1, 2009 Mary Ann Liebert, Inc. DOI: 10.1089/elj.2008.0013 Candidates, Squatters, and Gripers: A Primer on Political Cybersquatting and a Proposal for Reform Matthew T. Sanderson I. INTRODUCTION All three of these web sites were intuitively linked to prominent U.S. politicians, but none D URING LAST YEAR ’ S election, were you hop- were owned by the candidates or their cam- ing to read-up on Barack Obama’s abor- paigns. These sites exemplified a broader tion stance? Too bad, if you went to Obama trend. Without any legitimate affiliation, peo- ForPresident.com. It featured crossword puz- ple nab rights to web sites that evoke politi- zles and fantasy football rather than public-pol- cians’ names. They do it for profit. They do it icy papers. Were you looking to volunteer for for spite. They do it to broadcast criticisms. U.S. Senate candidate John Sununu? If you vis- They do it out of egotism or to indulge their ited JohnSununu.com, it allowed you to sign idea of fun. Most importantly, they do it often up for a free online dating service but not to and they do it everywhere. “Political cyber- sign on to a political campaign. Did you want squatting,” as this practice is known, is occur- to help finance John McCain’s bid for the pres- ring with increasing frequency around the idency? During much of the 2008 campaign world. 2 season, a contribution submitted through the This article discusses political cybersquat- official-looking JohnMcain.com would have ting’s causes and proximate harms. The next supported a man in Houston, Texas, without section offers necessary background informa- one nickel funding McCain’s run for the White tion on Internet processes and governance. House. 1 The following section describes the political- cybersquatting problem by showing that (1) candidates are seriously injured by cyber- squatting, (2) candidates are exceptionally ex- posed to cybersquatting, and (3) candidates Matthew Sanderson is a graduate of the University of Utah and of Vanderbilt University Law School. He cannot rely on existing preventive and reme- served as Campaign Finance Counsel for McCain-Palin dial methods to consistently solve their cy- 2008, Senator John McCain’s presidential campaign com- bersquatting problems. Finally, the article pro- mittee, and is now an associate in the Political Activity poses a new specialized top-level domain, Law practice group of Caplin & Drysdale, Chartered. Mr. Sanderson has published several articles on campaign fi- nance and election law, including Federal Campaign Fi- nance Law: A Primer for the Lobbyist, ABA Lobbying Manual (with Trevor Potter, 2009); From Intent to Out- 1 As late as February 2008, JohnMcain.com featured a come: Balloting and Tabulation Around the World, ABA International Election Principles (2008); and Voodoo Eco- “Contribution” web page that was nearly identical to the nomics: A Look Abroad for a Supply-Side Solution to “Contribution” page of JohnMcCain.com, the official web America’s Campaign Finance Riddle, Vanderbilt Journal site of Senator John McCain’s presidential campaign. 2 Jacqueline D. Lipton, Who Owns Hillary.Com?: Political of Transnational Law (2008). He and his wife Emily have two sons, Isaac and Miles. Special thanks to Chuck Fish, Speech and the First Amendment in Cyberspace , 49 B OSTON Chad Pehrson, Bryson Morgan, Aaron Randall, and Todd C OLLEGE L. R EV . 55, 60–61 (2008) (defining “political cy- Steggerda for their helpful comments and insight. bersquatting”). 3

4 SANDERSON that matches unique domain names to unique “.pol,” as a way to mitigate political cyber- IP addresses. 14 The browser first requests in- squatting’s harms. formation from its default domain-name server, which may already contain the IP ad- dress that matches � http:/ /www.vanderbilt. II. INTERNET BASICS edu � because of a recent, identical request from another browser. 15 If it doesn’t, the de- Basic knowledge of Internet processes is es- fault server forwards the browser’s request up sential to fully appreciating political candi- a hierarchy of domain-name servers until a dates’ vulnerabilities and remedies in the on- server’s database can match � http:/ /www. line context. This section briefly highlights the vanderbilt.edu � to an IP address. 16 At the top emergence of the Domain Name System and of this hierarchy is a “root” server that points the Internet Corporation for Assigned Names to the full, authoritative databases for each and Numbers (ICANN). It also describes TLD—both generic (.com, .edu, .net, .org) 17 and ICANN’s role in maintaining and regulating the Internet. 3 A. Michael Froomkin, Wrong Turn in Cyberspace: Using A. The Domain Name System’s emergence ICANN to Route Around the APA and the Constitution , 50 D UKE L.J. 17, 20 (2000). The Internet’s development was (and con- 4 Barry M. Leiner et al., A Brief History of the Internet , I N - tinues to be) a decentralized and un-hierarchi- TERNET S OCIETY , � http:/ /www.isoc.org/internet-history/ cal affair. But to function, the Internet relies on brief.html � (2003). 5 David S. Magier, Tick, Tock, Time is Running Out to Nab a highly centralized system. 3 Computers are as- Cybersquatters: The Dwindling Utility of the Anticybersquat- signed a unique identifying number called an ting Consumer Protection Act , 46 IDEA 415, 418 (2006). Internet protocol (IP) address. 4 Much like a 6 Froomkin, Wrong Turn in Cyberspace , supra note 3, at 38. 7 W ORLD I NTELLECTUAL P ROPERTY O RGANIZATION , T HE street address, an IP address helps computers identify and locate a specific computer. 5 Early M ANAGEMENT OF I NTERNET N AMES AND A DDRESSES : I NTEL - LECTUAL P ROPERTY I SSUES —F INAL R EPORT OF THE WIPO I N - in the Internet’s development, users would TERNET D OMAIN N AME P ROCESS 23 (1999), available at type a 32-bit number to access a web page. 6 � http:/ /www.wipo.int/amc/en/processes/process1/ report/finalreport.html � . However, these long numbers were cumber- 8 Susan P. Crawford, The ICANN Experiment , 12 C ARDOZO some and difficult to remember. J. I NT ’ L & C OMP . L. 409, 412 (2004). For an excellent, sim- To make the Internet more user friendly, do- plified description of the DNS’s functions, see How Stuff Works, How Domain Name Servers Work , � http:/ /www. main names—”human-friendly address[es]” howstuffworks.com/dns.htm � . for computers—were created 7 and the Domain 9 Tamarah Belczyk, Domain Names: The Special Case of Per- Name System (DNS) was born. 8 By convention, sonal Names , 82 B.U. L. Rev. 485, 490 (2002). 10 See Froomkin, Wrong Turn in Cyberspace , supra note 3, domain names contain three parts. 9 In at 39. www.vanderbilt.edu, for example, “edu” is a 11 A. Michael Froomkin, Wrong Turn in Cyberspace: Using top-level domain (TLD), “vanderbilt” is a sec- ICANN to Route Around the APA and the Constitution , 50 ond-level domain (SLD), 10 and all other parts D UKE L.J. 17, 39 (2000). 12 “http:/ /www.vanderbilt.edu” is known as a Uniform would be “lumped together as third-or-higher- Resource Locator or URL and may contain variations on level domains.” 11 Computers still utilize IP ad- “http:/ /www.” One could, for example, “ftp” instead of dress numbers, but domain names serve a “http” or omit “www” completely. 13 A. Michael Froomkin, When We Say US, We Mean It! , 41 mnemonic function and make the Internet eas- H OUS . L. R EV . 839, 857–858 (2004). ier to use. An Internet user can simply type 14 See Lily Blue, Internet Domain Name Governance: An- � http:/ /www.vanderbilt.edu � into a web titrust Litigation and ICANN , 19 B ERKELEY T ECH . L.J. 387, 388 (2004). browser and Vanderbilt University’s web site 15 Froomkin, Wrong Turn in Cyberspace , supra note 3, at 43 appears a split second later. 12 In that split (2000). second, the browser converts � http:/ /www. 16 Kim G. von Arx and Gregory R. Hagen, Sovereign Do- vanderbilt.edu � into an IP address number so mains: A Declaration of Independence of ccTLDs from Foreign Control , 9 R ICH . J.L. & T ECH . 4 (2002). it can request Vanderbilt’s home page from the 17 For a complete listing of generic TLDs, see Internet As- machine at Vanderbilt’s IP address. 13 To do signed Numbers Authority, Generic Top-Level Domains , this, it accesses the DNS—a dynamic database � http:/ /www.iana.org/gtld/gtld.htm � .