Graydon Head

Blog: Jack "Out of the Box"

Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

  • Roseanne Barr Off The Hook

    Jul 31, 2015
    The parents of George Zimmerman saw a Florida judge throw out their case against Roseanne Barr.  That is certainly the correct decision, but it doesn’t mean I have to be happy about it.  The First Amendment is the First Amendment and it apparently allows people to be stupid.  And obnoxious too.  

    Back in March of 2012, Roseanne sent out a number of tweets, several of which identified the home address of Gladys and Robert Zimmerman, the parents of George Zimmerman.  In one message she tweeted “If Zimmerman isn’t arrested I’ll rt (re-tweet) his address again – maybe go 2 his house myself.”    

    The Zimmermans filed suit claiming Barr’s tweets caused them emotional harm and infringed on their privacy rights.  The court’s decision to toss the suit ended the legal journey, at least pending appeal.     

    The problem for the Zimmermans was the simple fact that their address was a matter of public record.  And it’s just not possible to sue someone for disclosing information that’s already publicly available.  I suppose an argument could be made that exposing the address to the world (they call it the worldwide web for a reason) takes matters to a whole new level, and therefore creates a cause of action.  But I’m not aware of a case that says that.  

    While the court didn’t explain its ruling in any detail, Barr’s lawyers also argued that the Zimmermans interjected themselves into the controversy – by publicly defending their son -- and therefore sacrificed their privacy interest.  While we’ll never know why the court ruled the way it did there’s a part of me that hopes this wasn’t the case.  Seems like a pretty tough choice for a parent – either follow your instincts and protect your son or retain some semblance of normalcy.   

    I agree that publishing a publicly available address simply doesn’t equal invasion of privacy or infliction of emotional distress.  I have a tougher time agreeing that being a parent makes you fair game for a vindictive idiot like Roseanne.   
    Go comment!
  • Truly Stupid Laws

    Jul 28, 2015
    I was not aware of this fact until I began writing this post, but there are Web sites dedicated to highlighting “dumb laws.”  These sites tend to list obscure laws that were enacted at one time and never repealed.  So, for example, in Ohio it is illegal for more than five women to live in a house.  Having grown up with five older sisters and a mom, it now appears I came into this world in a criminal enterprise.  But ideally the statute of limitations has run on this one, so I assume I’m safe.  

    But in all of these lists, I’ve never seen any mention of the Tiahrt Amendment.  And that is inexplicable because it is a stunningly stupid law.  I became aware of it recently in my efforts to assist with an open records request for information on guns confiscated in the city of Cincinnati.  

    Since 2014, Cincinnati police have confiscated almost 930 illegal guns.  So one might think it interesting to see where these guns were sold.  Imagine that there was a large number of arrests for underage drinking in some location.  And imagine if you could determine where those kids were buying their booze.  And suppose data indicated a high percentage of the sales to underage drinkers was at one or two stores.  That would probably allow police to target those stores and maybe put a stop to the illegal sales.  Any part of that hypothetical not sound reasonable?  

    Now, instead of 12 packs of Nati Lite, substitute guns that you know, kill people.  Same logic applies, right?  That’s a trick question because logic rarely comes in to play when talking about gun legislation.  The data on gun sales exists.  The Department of Alcohol Firearms and Tobacco requires dealers to report it.  And it would be easy for the public to find the information via a Freedom of Information Act request.  But that’s where the stupid Tiahrt Amendment rears its ugly head.     

    The Tiahrt Amendment, which was originally slid into an ATF spending bill in 2003 essentially puts that data off limits to the public.  And I mean way off limits.   The Amendment prohibited the ATF from spending any money to release any gun trace  or sales data in response to a FOIA request.   Under the Tiahrt Amendment, ATF is prevented from disclosing valuable crime gun data to the press, advocacy organizations, and scholars who are studying the problem of guns and crime.  

    Apparently, that restriction wasn’t enough to satisfy the gun lobby, because later on, the Amendment was expanded so that the data was not subject to subpoena in a civil action, nor could it be used as evidence in any civil action in any state.  Typically, courts are allowed to make their own rules about what evidence can or can’t be introduced into evidence, or discovered in a civil proceeding.  It’s called “separation of powers.”  Our founding fathers adopted this framework for a reason.   But apparently the gun lobby loves the Second Amendment so ardently, they tend to gloss over other parts of The Constitution which they purport to love so much.    

    And let’s be clear.  There is nothing in the Second Amendment that prevents the government from maintaining data on gun sales, nor prevents the public from being informed.  The Tiahrt Amendment is motivated not by principle, but by sheer self-interest and callousness.  It is a law that does not merely seek to rewrite history, but to rewrite reality itself.  And it belongs at the top of any list of dumb laws.    
    Go comment!
  • Bogus Stories - A Coming Thing?

    Jul 17, 2015
    Here’s a Dan Gillmor post from Slate talking about a recent bogus online post reporting the likely sale of Twitter.  The report came from “” and a lot of people naturally assumed that meant the post came from the Bloomberg News Service.  It didn’t.  

    The bogus post apparently caused a brief 8% uptick in Twitter’s stock price, although the share price came back to its previous level before the end of the day.  But the most interesting part of the post for me was the author’s prediction that this type of thing is likely to occur frequently going forward.  And he gives several reasons.  

    First is simply lax reporting.  Media outlets reported on the post without taking any steps to verify its accuracy.  And had they done so, they probably would have spotted some clues.   For instance, the post referred to Dick Costolo as “Costello.”  Sure, mistakes happen, but that’s a pretty big one, and should have been a red flag.   
    Another thing that should have given some pause was the domain name of the poster – “”  Bloomberg’s actual domain is “”  Folks who fell for the bogus post didn’t pay attention to the suffix.  And that is not entirely on them.  As Gillmor points out, ICANN, (the Internet Corporation for Assigned Names and Numbers) is at least partially responsible.  ICANN made the decision to expand “top level domains” and that’s what makes names like available to scammers.  The expanded pool of top level domains means more opportunities for hoaxes.  And, as Gillmor points out, probably means legitimate organizations like Bloomberg may need to buy up an increasing inventory of domains to prevent this kind of abuse.  

    But the lesson from this episode is for all of us to be a little more skeptical of what we read online.  The clues are there, we just need to look for them.   
    Go comment!
  • Judge Not Lest You Be Judged, Judge

    Jul 13, 2015
    A federal judge in Maryland recently got into trouble as a result of his blog.  And his solution may be a little extreme to say the least.   

    The judge in question is the honorable Richard Kopf, a U.S. District Court judge in Nebraska.  Judge Kopf has for some time maintained a blog called Hercules and the Umpire.   Recently Judge Kopf wrote a post in which he opined that Ted Cruz is not fit for office.  Judge Kopf’s post was motivated by Senator Cruz’s call for a constitutional amendment that would require Supreme Court justices to periodically stand for retention elections (Senator Cruz’s new slogan  – “I love the Constitution, but let’s not get carried away”).  

    In Judge Kopf’s view, Cruz’s attack on lifetime tenure demonstrated that Cruz is a “right-wing ideologue” who is “demonstrably unfit to become President.”  And that may be true.  But federal judges are not quite as free as the rest of the population to share their opinions.     

    Canon 5 of the Code of Conduct for Federal Judges says: “A judge should not . . . publicly endorse or oppose a candidate for public office.”  The policy reason for that provision no doubt is to maintain the judiciary’s independence.  But did Judge Kopf violate the rule?  Well, no, at least according to Judge Kopf.  In response to a commenter on his blog, the Judge said:  

    For me, it is enough to state that I did not label Senator Cruz unfit to serve in order to oppose his candidacy for political or partisan purposes but rather to demolish and protect us all from his intemperate legal attacks on the Supreme Court. I remind you that I am not registered to vote, and I have not been registered to vote since I became a judge in 1987. My comment on his legal fitness was inextricably intertwined with my right to speak publicly on legal matters and the administration of justice. That said you are correct that I skated close to thin ice.

    So, I think there are a couple of parts to the Judge’s position.  As an initial matter, he believes he is free to comment on a general legal proposition.  And he’s probably right as far as that goes.  And the legal proposition here is the question of lifetime tenure for Supreme Court justices.  In Judge Kopf’s view, the policy reasons for keeping Supreme Court justices off limits to popular vote are so clear that only an idiot would think otherwise.  And to take it one step further, idiots are not fit for the office of presidency (oh man, I can’t wait to read the comments on this one. I’ll make it easy “If idiots aren’t fit to be president, how do you explain ___________ ).  

    So the question becomes, can a Judge speak his mind on an issue and not at least implicitly be viewed as opposing a candidate who disagrees with that position?  Judge Kopf drew additional attention by explicitly naming Cruz, but had he said “anyone who thinks Supreme Court Justices should stand for election is unfit for the office of president” would it have mattered? Judge Kopf’s initial response had a “no harm no foul” aspect to it.   

    But that was then. More recently, Judge Kopf announced that he is pulling the plug on his blog.  Apparently, at a retreat for employees of the Nebraska District Court,  the question was posed whether the Judge’s blog had become an embarrassment for the court.  A majority of employees indicated by raising their hands that it had.  And so, the blog will cease.  

    I hate to see that resolution.  It seems to me that making courts more transparent and accessible is a good thing.  I find it hard to believe that Judge Kopf couldn’t continue with his writing and stay within ethical guidelines.  At this point, I suppose we’ll never know.  
    Go comment!
  • Daniel Snyder and Common Sense - An Inverse Relationship

    Jul 09, 2015

    Christine Brennan is one of the best sports columnists in the country.  And she is a lovely person.  Here’s her column on the decision by a federal judge in Virginia to cancel the federal registration of the trademarks of the NFL’s Washington D.C. franchise.  The court found that the term in question were disparaging to a substantial composite of Native Americans.  Under the federal Lanham Act, that finding compels cancellation. 

    The question is, what does that mean? It may be easier to talk about what it does not mean.  As the court’s opinion notes, it is not an order that precludes the team and owner Daniel Snyder from continuing to use the name.  And it doesn’t mean that the team can’t enforce the trademark.  Bootleggers are not free to set up shop pedaling t-shirts bearing the logo.  The team still has common law rights to the trademark which it can enforce. 

    The primary consequences are these: 

    • Federal registration provides nationwide notice of the existence of the trademark.  So that goes away. But the team’s interest by this point is known nationwide.
    • Federal registration makes the mark “incontestable” in litigation.  So a party challenging a federal registered mark for example, can’t argue that the mark is confusingly similar to another mark, that the mark is “functional” or lacks secondary meaning.  This means the team would have to fight those fights in court if someone challenges the team’s rights in the mark.  But again, given their long use, it seems unlikely that a subsequent or other user would be successful with these claims.
    • Federal registration gives the mark holder the automatic right to sue in federal court. So that’s gone.  But the team could still sue in federal court based on diversity of citizenship.
    • Federal registration allows the holder to recover three times actual damages plus attorney fees in a successful infringement suit.  So that’s gone.
    • Federal registration allows the mark holder use the   symbol, which prevents claims of innocent infringement. Again, this is not likely an issue for the team  given their public and long term use.
    • Federal registration entitled the mark holder to enlist help from US Customs for policing counterfeit goods. This loss may be the team’s biggest problem to the extent counterfeiters import bogus product.  

    The court’s decision may do more damage to Snyder and his franchise from an optics perspective than it does from a true legal perspective. But at some point, you have to wonder, when is this fight just not worth it? It seems to me we passed that point a long time ago.

    Many thanks to my colleague Amanda Penick for her help on this post!

    Go comment!
  • Like They Say, The Customer is Always Right

    Jul 08, 2015
    A Texas woman named Araceli King is richer thanks to a federal judge who slapped Time Warner with a $230,000 judgment stemming from Time Warner’s repeated “robocalls” to the woman.  According to the judge, Time Warner committed “egregious” violations of the Telephone Consumer Protection Act of 1991.  

    The TCPA allows consumers to recover statutory damages of between $500 and $1500 for each violation. Violations include making calls using an “artificial” or prerecorded voice to a residential telephone line.  From a consumer’s perspective, statutory damages are nice, because they do not require proof of actual harm.  Once a violation is established, the damages are due.   

    In this case, Time Warner not only violated the act, it continued to do so – 153 times – after Ms. King informed Time Warner she was not the customer they were looking for.  Time Warner made 74 calls even after Ms. King filed suit.   While persistence typically is an admirable quality, in this case, maybe not so much.  

    The TCPA has an additional kicker – a court can triple the statutory damages if the violations are committed “willfully.”  In this case, the court had an easy time making that find.  And so, it not only applied the full $1500 for each violation, it tripled that number.  And that’s how the total hit approached a quarter million dollars.  Ouch.  

    The lesson is pretty simple for any business thinking about using automatic telemarketing services.  Lesson one? Think again.  But if you ignore lesson 1, at least make sure someone is supervising to ensure compliance with the TCPA! The damages can escalate pretty quickly.
    Go comment!
  • The Donald Being Donald

    Jul 06, 2015
    Presidential candidate, real estate mogul and reality TV star Donald Trump can now add “plaintiff” to his resume.  He is suing Univision Networks & Studios, along with Alberto Ciurana, President of Programming for Univision.  The primary basis for the claim is Univision’s decision to terminate its relationship with Trump and the Miss USA pageant.      

    Univision made the decision in response to certain of Trump’s comments in his announcement that he was running for president.  At its core, the case is a breach of contract dispute.  Univision either had the right to cut ties for the reasons is asserted or it didn’t.  The contract is not attached to the complaint, so I really have no idea if Univision breached it or not.   

    Of course, Trump being Trump, he sees the case as far more than a mere contract dispute.  Set out below are a few highlights. On Univision’s motivation:  

    While Univision has claimed in the media that its decision to cut ties with [Trump] came in response to certain comments by Mr. Trump during a June 16, 2015 campaign speech announcing his candidacy for President of the United States, the decision was, in reality, a thinly veiled attempt by Univision, a privately held company principally owned by longtime Clinton Foundation donor and current Hillary Clinton fundraiser, Haim Saban, to suppress Mr. Trump’s freedom of speech under the First Amendment . . . .  Little else can explain Univision’s decision . . . .”   

    Little else?  Really?  Maybe Mr. Trump’s right.  But does he sincerely think his calling Mexican immigrants rapists might not upset Hispanics, the key demographic of Univision?  And maybe, just maybe, that’s why Univision made its decision? Does that not seem plausible?  

    And part of Mr. Trump’s claim is that his offensive comments were nothing new:  

    In reality,, however, Mr. Trump’s calls for immigration reform, particularly with respect to the U.S.-Mexican border, were nothing new. Indeed, for over a decade, Mr. Trump had, in numerous television and news interviews, consistently voiced his concerns regarding the influx of illegal immigrants pouring into the United States across the Mexican border and the crime that has resulted therefrom . . . .  

    So, if I am reading this correctly the point is, Mr. Trump has always been a bigot, so the fact that Univision is pulling the plug now must be for some other nefarious reason.  Good luck with that strategy.   

    And let’s get back to this business about Univision suppressing Mr. Trump’s freedom of speech under the First Amendment.  Um, no they’re not.  Mr. Trump is lucky there’s not a Civics exam requirement to run for President.  Because I think he’d flunk it.  The government, and really only the government, can suppress one’s First Amendment rights.  That Amendment covers only state action (technically it only covers Congress), not private parties.  So Univision may or may not have a contractual right to cut Mr. Trump loose based on his comments.  But it owes no First Amendment duty to him.  And he (or at least his lawyers) know better.   

    The complaint also asserts a defamation claim against Alberto Ciurana, for posting this image on his Instagram account:  

    According to the complaint:  

    In a move that can only be described as both tasteless and defamatory, on June 25, 2015, Mr. Ciurana . . . posted a photo on his official Univision Instagram account comparing Mr. Trump to Dylann Roof, the 21 year old who was recently arrested in the murder of nine African Americans attending  a bible study at a church in Charleston, South Carolina, one of the worst hate crimes to ever take place on U.S. soil.  

    Several things.  First, it’s interesting to note that Mr. Trump’s complaint calls the Charleston shooting a “hate crime.”  Mr. Trump’s “Fox and Friends” buddy Steve Doocy found it “extraordinary” that the shooting was called a “hate crime.”  So there’s a little progress.  Second, Mr. Ciurana’s posting was no doubt over the top.  Maybe even tasteless.  But that doesn’t make it defamatory, especially as to Mr. Trump. He’s a public figure and he’s have to establish “actual malice.”  

    Among the hurdles that Mr. Trump’s defamation claim would face here is the fact that it’s not entirely clear what Mr. Ciurana meant by his posting.  That’s a problem for Mr. Trump because a defamation plaintiff has to show a false statement of verifiable fact.  The post is simply a side by side depiction of Mr. Trump and Dylan Roof.  It literally says “No Comments.”  Where’s the false verifiable fact?  Strike one.  

    And it’s true a defamation plaintiff can base claim on the “implication.”  But the implication itself has to be a statement of fact.   Let’s say someone made a poster of Mr. Trump with photos of four women, and text that said “Trump Supports Traditional Marriage – Ask his Four Wives.”  The implication there would be that Mr. Trump had been married four times.  And that would be a false statement of fact.  He’s only been married three times.   

    But the marriage example is different from the Roof post.  Because there’s no clear factual implication.  Strike two.  

    And given that no one thinks Mr. Trump killed anyone, the worst implication from the post is that Mr. Trump and Dylan Roof are equally hateful.  But that’s an opinion.  And as the Supreme Court has said, there is no such thing as a false opinion.  So, strike three.  The defamation claim is out.   

    Let’s hope that the court treats this case for what it is – a contract dispute and nothing more.  Courtrooms should not serve as stages for political theater.  And presidential candidates should have thicker skin.  And a passing understanding of Civics.   
    Go comment!
  • Blurred Lines Verdict Shows Importance of Discovery

    Jul 02, 2015
    I found this New York Times interview of Robin Thicke kind of interesting.  He talks a little about the verdict in the “Blurred Lines” copyright infringement case. For those of you who don’t know, Thicke lost an infringement suit to the estate of Marvin Gaye. Gaye’s heirs claimed “Blurred Lines” copied Gaye’s hit “Got to Give It Up.”  The jury returned a verdict of $7.4 million.  The case is on appeal.  

    A number of commenters, including me have expressed concern with the ruling.  “Blurred Lines” is in no way a line for line copy of “Got to Give it Up.”    But there are some definite similarities in the songs’ style.  

    And that’s the troubling part about the verdict.  If stylistic similarity is all that’s needed to establish copyright infringement, there may be a lot of litigation headed our way.  I say that for a number of reasons.  First, there are only so many chords.  So, songs are bound to overlap.  Want an example?  Check out the chord progressions in “This Magic Moment”  and “Run Around Sue.”   They’re identical.  But if you’re old enough to remember those songs, do you get them confused?  Think one copied the other?   

    Second, musical artists influence one another.  How many pop bands emulated the Beatles?  How many folks singers drew inspiration from Bob Dylan?  But is that enough to establish a copyright violation?  Should it? How would that scenario limit the creative process?  The “Blurred Lines” decision is potentially terrible precedent.    

    And based on Thicke’s interview in the Times, it’s possible the verdict resulted from Thicke’s deposition testimony in the litigation.  Thicke’s deposition testimony about how he came to write the song differed from accounts he’d given in interviews when he was promoting “Blurred Lines.”  He apparently tried to explain the discrepancy away by saying he was drunk when he gave the interviews.  He may have been, but that type of testimony doesn’t do much for the credibility of the witness.  And as is the case in almost all cases, the credibility of the key witness is, well, key.  This case depended in a large part on the jury believing Thicke when he said he didn’t copy Gaye’s song.  And if the jury didn’t think Thicke was credible, that testimony was bound to be a tough sell.  

    In the Times interview, Thicke admitted he was “careless” in his deposition.  And that is a Cardinal Sin.  There is an old cliché that says you can’t win a case in a deposition, but you can lose one.  So no matter the case, it’s important to be prepared when giving deposition testimony.  Thicke’s carelessness is an illustration. It may not only have cost him the case, it may well impact thousands of artists who come after him.  Carelessness is really unacceptable.      
    Go comment!
  • The Bully Pulpit and The First Amendment

    Jun 30, 2015
    A North Carolina “cyber bullying” statute prohibits the use of a computer or computer network to "[p]ost or encourage others to post on the Internet private, personal or sexual information pertaining to a minor" with "the intent to intimidate or torment a minor."  

    A North Carolina high school student named Robert Bishop was convicted under that statute for posting several online comments about a classmate named Dillion Prince.  It appears that a text message Prince had sent another classmate had found its way to Facebook.  It’s not clear what the text message said, but it triggered over 30 comments.   

    Bishop added several comments, including:  1) "This is excessively homoerotic in nature. Exquisite specimen;" (2) "Anyone who would be so defensive over Dillion can't be too intelligent;" (3) "And you are equally pathetic for taking the internet so seriously;" and, (4) "There isn't a fight. We're slamming someone on the open forum that is the internet."  

    On another occasion, and in response to another text message from Dillion posted on Facebook, more comments appeared.  One commenter said “Can we just kick his ass already?”  Bishop responded:  "I never got to slap him down before Christmas Break," followed by a "sad face" emotion icon. Another student requested for someone to "tag" Dillion, in order for him to be notified of these posts. Defendant replied, "I'll add him."   

    On another occasion, Bishop commented about Dillion as follows:  "I heard that his anus was permanently stressed from having awkwardly shaped penises in it" and stated that Dillion's genitals were "probably a triangle."  

    Okay, so the evidence establishes that Robert Bishop is a punk.  Slam dunk, open and shut.  But to the great relief of an overwhelmingly large percentage of teenage boys, being a punk is not a crime.  But did Bishop really violate the statute? And even if he technically did, what about the First Amendment?  

    Let’s address question 1.  There’s no question that Bishop used a computer and that Prince is a minor.  And let’s put aside Bishop’s motivation for a minute.  There were three occasions of alleged cyber bullying here.  And as to the first two, it’s tough to see where any of Bishop’s comments are particularly “private, personal or sexual.”  The third comment is crude, but it’s so over the top, it seems like it would be considered “hyperbolic”  -- that is, not to be taken seriously.   

    And what about Bishop’s motivation?  Again, he’s a punk, but did any of his comments pose a direct threat to Prince?  Was Bishop trying to induce Prince to do or not do something? That’s usually a feature of “intimidation.”  And “torment” is a strong word, but also vague.  Is the fact that Prince feels tormented sufficient to establish Bishop’s motive?  Is that all it takes?  Does a conviction ride on how thin skinned the target happens to be?   

    In upholding the North Carolina statute,  the appellate court concluded that the statute did not punish Bishop based on the content of his speech, but rather punished his conduct.  It compared the cyber bullying statute to the North Carolina statute prohibiting telephone harassment. It cited to a previous decision upholding that statute, because that statute was directed at "using telephones to annoy, offend, terrify or harass others and not directed at prohibiting the communication of thoughts or ideas."   

    I’m not so sure about that comparison.  A telephone is by its nature intrusive – it rings and forces action, typically answering.  So if a person called 100 times a day just to tell you you’re great, you might still be annoyed.  The content of the message really doesn’t matter.  It’s like graffiti.  No matter how much I support The Cincinnati Reds, I wouldn’t want someone to spray paint “Go Reds” on my car.   

    But cyber bullying is not intrusive in the same manner as telephone harassment.  And the telephone harassment statute did not address the content of the call.  In my example above the person who called me 100 times a day just to tell me I’m great could be charged with telephone harassment.  But if the person posted how great I was 100 times on their Facebook page, there would be no liability under the cyber bullying statute, simply because that message isn’t “personal, private or sexual.”   

    The point is, the content of the message matters.  And if that’s the case, the North Carolina cyber bullying statute violates the First Amendment.  Even though Robert Bishop is still a punk.    
    Go comment!
  • The Right Not To Be Known

    Jun 29, 2015
    While the First Amendment protects the right of a speaker to proclaim a message in public, it also protects the right to speak anonymously.  As well it should.  There are times when a message may only be uttered if the speaker can do so anonymously.   Let’s not forget that the pamphlet Common Sense  -- so influential to the cause of American independence – was originally published anonymously.  

    And while it is not subject to the First Amendment, the International Corporation for Assigned Names and Numbers (“ICANN”) would be wise to consider the thinking behind the First Amendment and reconsider its plans to limit the ability of commercial Web site owners to register domain names anonymously.   

    But first, some background.   ICANN is the nonprofit agency responsible for maintaining the unique identifiers related to namespaces on the Internet.  Anyone wishing to create a domain name is a “registrant.”  ICANN manages this process through multiple registrars and registries, the entities who register the domain names for registrants.  The information collected in the process is maintained in the WHOIS data base.  

    Registrants who preferred not to share contact information have been able to pay a small fee and use proxies to register for them.  And there could be lots of reasons for this. Certainly anyone establishing a Web site geared around controversial or unpopular topics might prefer anonymity.  Others may fear retaliation for the site’s content.  Had the Internet existed in the 18th century, Thomas Paine – the author of Common Sense – likely would have taken advantage of it.   

    But the aforementioned proposal would essentially eliminate this option.  Which is curious.  Because there seems to be no compelling reason for the proposal.  There are, no doubt, occasions where a party needs to know the registrant’s identity.   This could be for a criminal or civil proceeding.  And that’s what a subpoena is for.   

    So it’s not like the information is out of reach. It’s more like it’s inconvenient to retrieve.  And so the proposal seems designed to make it easier to retrieve the information.  It’s significant that the Coalition for Online Accountability ( a group made up of 8 U.S. entertainment companies) is a leading supporter of the proposal.  Those companies are engaged in a constant battle against online piracy.  It’s understandable that they’d like to make the process of rooting out pirates a little easier.  

    But given the free speech stakes involved, it’s reasonable to expect a better reason for this change than convenience.  
    Go comment!
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