ADVISE YOUR SENATOR NOW: OPPOSE THE SNOWE BILL!

It is very important that every U.S.-resident ICA member as well as other domainers write to their U.S. Senators and advise them of the serious concerns raised by Sen. Snowe’s “anti-phishing” bill. Because it has been labeled consumer-friendly legislation aimed at stopping a serious consumer scam, your Senators may be inclined to support it unless they learn that it is not as advertised –and that their constituents have major concerns about it. Constituents are voters, and elected officials care about what they think

The first step is to determine who your two Senators are. You can find this out, if you don’t already know, by going to Senate.gov and clicking on “Choose A State”. In some cases you may have contacts with more than one state – for example, you might live in Connecticut or New Jersey but have your business located in New York City – and in that situation you should write to all the Senators you have a connection to. Likewise, if you have a business that employs others then share this information with them and encourage your employees and colleagues to write as well, as their livelihoods are also at stake.

All U.S. Senators now have a web form or e-mail link available through the above webpage, and you should by all means use that to send your initial message ASAP. However, physical mail still counts for more than e-mail on Capitol Hill as an indication of a writer’s concern about an issue, so please also consider conveying your message by “snail mail” as well. Again, the webpage provides the physical address of each Senator’s office in Washington.

If you get a response from your any of your Senators please share that with ICA Counsel Philip Corwin by forwarding it or advising him at pcorwin@butera-andrews.com.

Because the bill has been referred to the Senate Commerce Committee, Senators who serve on that Committee will have the first cut at it. Our goal is to make sure that the bill never gets out of the Committee in any form that contains language harmful to domainers, so it is particularly important to make a strong case if one of your Senators serves on that Committee. The current members of the Commerce Committee are:

Democrats

Chairman Daniel K. Inouye (HI)(* Ex-Officio)

John D. Rockefeller, IV (WV)*

John F. Kerry (MA)*

Byron L. Dorgan (ND)(* Subcommittee Chairman)

Barbara Boxer (CA)*

Bill Nelson (FL)

Maria Cantwell (WA)*

Frank R. Lautenberg (NJ)

Mark Pryor (AR)*

Thomas Carper (DE)

Claire McCaskill (MO)*

Amy Klobuchar (MN)

Republicans

Vice Chairman Ted Stevens (AK)(* Ex-Officio)

John McCain (AZ)*

Kay Bailey Hutchison (TX)

Olympia J. Snowe (ME)*

Gordon H. Smith (OR)*

John Ensign (NV)*

John E. Sununu (NH)*

Jim DeMint (SC)(* Ranking Member)

David Vitter (LA)

John Thune (SD)

Roger Wicker (MS)

*Interstate Commerce Subcommittee member

The bill has been referred to the Subcommittee on Interstate Commerce; it is Chaired by Sen. Byron Dorgan and the ranking minority member is Sen. Jim Demint. Normally a bill will be considered by the full Committee for possible reporting for full Senate consideration only if it has been the subject of a hearing and subsequent “markup” (amendment process) in Subcommittee – so it is particularly important to communicate your views if one of your Senators serves on that Subcommittee. If S. 2661 never gets a hearing or markup in Subcommittee it cannot advance further and will die at the end of the 110th Congress this fall (it can, of course, be reintroduced in 2009, when the 111th Congress convenes and the entire legislative process starts over again from scratch).

Suggested Text

We are providing this sample letter to make it easier for you to send a letter to your Senators quickly. However, individualized letters count for more than form letters on Capitol Hill, so to the extent that you personalize this basic letter by adding details about your domain name activities and your personal thoughts on the Snowe bill your letter will have more impact. Whatever you write should be clear, well reasoned, and polite – never use profanity or other incendiary or argumentative language, even if one of your Senators is a sponsor of the bill. No flaming, please! – we are out to change minds, not start verbal fistfights.

 

The Honorable (name of Senator)
(office address)
Washington, DC 20510

Dear Senator ______________:

I am writing as a professional domain name investor and developer to express my strong concern about and opposition to S. 2661, the “Anti-Phishing Consumer Protection Act”, introduced by Senator Snowe on February 25, 2008 and referred to the Commerce Committee.

While I support strong law enforcement efforts against criminal Internet phishing scams and other online financial frauds, S. 2661 will add little to those efforts. E-mail, not domain names, is the primary tool used by criminal phishers, and to the extent that domains are used they are often surreptitiously established on unsuspecting servers and computers, and not registered with factual identifying information through legitimate processes.

While it is labeled an anti-phishing bill, a principal thrust of S. 2661 is to provide trademark owners and others with a new federal cause of action against domain names registrants such as me. I am careful to assure that my domain names do not violate established law and policy, but this bill would expose me, and every small business running even a single e-commerce site, to potential litigation attacks by deep-pocketed corporations and others under a new and vastly expanded body of law. Domain names that are all lawful under current trademark law – including generic names such as newyorkcheesecake.com, geographic names such as palmsprings.com, and fair use criticism site such as verizonpathetic.com, could all face lawsuits brought by deep-pocketed plaintiffs if this proposal was enacted in its introduced form.

Trademark owners already have strong and highly effective remedies for infringement of their marks by domain names, as they can elect to pursue an arbitration action through the Uniform Dispute Resolution Process (UDRP) administered by the Internet Corporation for Assigned Names and Numbers (ICANN) or to sue in Federal Court under the Anti-Cybersquatting Prevention Act (ACPA). S. 2661 would give them a third option that is broader in scope, less balanced, and far more punitive than the ACPA. For example, both the UDRP and the ACPA require that the trademark owner establish that a domain registration was made in “bad faith”, but S. 2661 contains no such requirement. And while the ACPA provides for statutory damages of up to $100,000 per infringement, S. 2661 would provide damages of up to $6 million for the same offense. Notwithstanding the bill’s labeling as an “anti-phishing” measure, these lawsuits could be brought without any requirement that they allege, and provide some supporting evidence, that the targeted domain name was in any way associated with criminal phishing activity.

S. 2661 is a direct threat to my livelihood and to the substantial investment I have made in domain names, which constitute the virtual real estate of cyberspace. It is a recipe for large corporations and other parties to engage in legally sanctioned “reverse domain name hijacking”. Other parts of the bill would violate the legitimate privacy expectations of domain name registrants and could be used to suppress all types of free speech conducted through websites.

Please do not cosponsor S. 2661 or vote in favor of it in its present form. As your very concerned constituent, I am asking that you oppose this legislation until its redundant, unbalanced, and unnecessary trademark-like provisions have been removed. Please advise me of your position on this legislation.

Thank you for considering my views on this very important matter.

Sincerely,
(your name; your address in the state)

____________________________________________________________

[1] As of March 7, 2008 the only Senators to sponsor the
bill are Senators Snowe (ME), Stevens (AK), and Nelson (FL). It is perfectly
appropriate to respectfully ask a bill’s sponsors to reconsider their support
or to commit to addressing the problems you have raised.

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