The Internet is Becoming a Perpetually Lawless Frontier

In the American frontier of the 19^th Century, outlaws found virtually unbounded opportunities to rob pioneers of their treasured few possessions, while the few understaffed lawmen faced difficulty detecting, arresting, holding, and convicting wrongdoers.  In the early 21^st Century, the Internet represents a similarly lawless frontier.  A virtually infinite supply of domain names and websites has generated a gold rush mentality, as millions have sought to cash in by speculating on the virtual real estate that the Internet seems to offer.

The Internet’s frontier mentality has also attracted its share of brigands.  Those seeking to rob web users of their hard-earned money are the same types of predators who mastered the arts of deceit, theft and counterfeiting on the bygone frontier.  While their methods may be far more sophisticated, their fundamental approach is the same as old-fashioned con men.

Without any form of meaningful regulation, a dramatic new expansion of the Internet frontier is occurring, and is threatening to undermine any semblance of law and order that has been struggling to develop over the Internet.  The Internet Corporation for Assigned Names and Numbers, (“ICANN”) recently announced that it has received applications for more than 1,900 new domain name extensions, including: .BID, .BUY, .DEAL, .DESIGN, .DISCOUNT, .FASHION, .FREE, .GIFT, .HOT, .JEWELRY, .LOL, .LUXURY, .ONLINE, .SALE, .SHOP, .STORE, .VIP, .WATCHES, .WEB, .WTF, and .WOW.  Hundreds of these applications will likely be approved, and tens of millions of new domain names may be in use with these new extensions by the end of next year.

“ICANN’s program may open up new opportunities, but it also presents a whole new frontier of potential—and likely—abuse by those seeking to profit from the name, reputation, and content of others,” said Scott Bain, Chief Litigation Counsel for the Software and Information Industry Association, quoted by the Washington Post.

But everyday e-commerce web users are already facing a never-ending barrage of spurious websites selling counterfeit products online.  It is absolutely clear that in the absence of appropriate and effective legal structures requiring stricter verification and identification of domain name ownership and control, a dramatic and unprecedented expansion could be catastrophic for brand owners and consumers alike. 

Faced with the bruising public defeat of the Stop Online Piracy Act (“SOPA”) in January 2012, brand owners have undertaken aggressive actions to address online counterfeiting, including filing mega-lawsuits in federal court using existing laws and technology.  However, the online counterfeiting threat persists, and by some accounts has increased markedly.

ICANN president Rod Beckstrom said in a recent press conference that the group has added new provisions to protect intellectual property, including the option for rapid takedown when brand holders feel their IP may be threatened.  ICANN also reserves the right to take a domain name back if it there is significant abuse.

But ICANN should not be entitled to create a perpetually lawless frontier without applying consistent and binding legal regulations about the already-rampant intellectual property abuse occurring on the Internet.  

Without strict disclosure and domain name ownership laws in place, ICANN runs the risk of establishing the Internet as perpetual “wild west,” without any lawmen on their way to bring law and order to the troubled frontier.

Congress should act now to intervene and hold additional public hearings on how ICANN’s proposed domain name expansion program will affect consumers and brand owners, in the absence of laws addressing intellectual property abuse and consumer fraud already perpetrated online.