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December 8, 2005, 8:00 AM, Alert No. 1,268.
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GAO Reports There is Widespread Domain Name Registration Dishonesty

12/7. The Government Accountability Office (GAO) released a report [51 pages in PDF] titled "Internet Management: Prevalence of False Contact Information for Registered Domain Names". The report consists of a four page letter, and presentation slides.

The report states that "we estimate that 2.31 million domain names (5.14 percent) have been registered with patently false data in at least one of the required contact information fields. In addition, we estimate that 1.64 million domain names (3.65 percent) have incomplete information in one or more of the required fields. In total, we estimate that 3.89 million domain names (8.65 percent) had at least one instance of patently false or incomplete data in the required Whois contact information fields." (Parentheses in original.)

The GAO's methodology was to randomly select and investigate 900 domains, 300 each from the .com, .net, and .org top level domains, and then draw inferences from this sample.

The report also states that the Department of Commerce and the Internet Corporation for Assigned Names and Numbers (ICANN) "have taken steps to ensure the accuracy of contact data in the Whois database, including implementing a Registrar Accreditation Agreement that requires registrars to investigate and correct any reported inaccuracies in Whois contact information for the domain names they register, and an amendment to their memorandum of understanding that required ICANN to implement measures to improve the accuracy of Whois data. ICANN has also published additional information and guidance for registrars regarding their obligations to investigate and correct data inaccuracies, and implemented a system to receive and track complaints about inaccurate and incomplete data."

The report is addressed to Rep. Lamar Smith (R-TX) and Rep. Howard Berman (D-CA), the Chairman and ranking Democrat on the House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property.

Rep. Smith stated in a release on December 7, 2005, that "With the holiday shopping season well underway, consumers need assurance that their online purchases are not actually online scams ... One way for online consumers to identify who they are really buying from is to look up their vendor's WHOIS registration record." He added that "Today, we have a better sense of the problems consumers face when they shop online ... I look forward to working further on this issue next year to protect American consumers from online fraud."

Rep. Smith's and Rep. Berman's interest in domain name registration dishonesty is longstanding, and broad. They are also concerned about the association of domain name fraud with intellectual property theft.

The GAO's presentation slides state that "users of the Whois service have broadened over time to include law enforcement officials, owners of intellectual property, and others seeking contact information about Web site owners for a variety of reasons".

The GAO's presentation slides also state that "Data accuracy is important to the effectiveness of the Whois service in helping Internet operators to resolve technical network issues, as well as helping law enforcement officers to investigate such things as intellectual property misuse or online fraud. According to federal agency officials, accurate Whois data have the potential to allow law enforcement officials to identify individuals involved in criminal activities on the Internet more quickly than if such information were not available."

On February 3, 2004, Rep. Smith and Rep. Berman introduced HR 3754 (108th Congress), the "Fraudulent Online Identity Sanctions Act", a bill to provide additional civil and criminal remedies in actions that also involve domain name fraud. See, story titled "Representatives Introduce Bill to Deter Domain Name Fraud" and story titled "House Subcommittee Holds Hearing on False Domain Name Registration Data" in TLJ Daily E-Mail Alert No. 830, February 5, 2004.

This bill was not enacted as a stand alone bill. However, an amended version was included as Title II of HR 3632 (108th), the "Intellectual Property Protection and Courts Amendments Act of 2004", which was enacted into law. It is now Public Law No. 108-482.

The bill did not create any new civil or criminal prohibition of registering a domain name with false information. Instead, it created a rebuttable presumption of willfulness in trademark and copyright infringement cases, where the violation also involves registering a domain name with false information.

First, the bill amended 11 U.S.C. 1117 (Trademark Act of 1946) to provide that "In the case of a violation referred to in this section, it shall be a rebuttable presumption that the violation is willful for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the violation."

Second, the bill amended 17 U.S.C. 504, the section of the Copyright Act that provides remedies for infringement, to provide that "In a case of infringement, it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement."

Third, the bill amended the sentencing provisions of the Criminal Code that are codified at 18 U.S.C. 3559 to add a sentencing enhancement for offenses that involve falsification relating to domain names. It provides that "If a defendant who is convicted of a felony offense (other than offense of which an element is the false registration of a domain name) knowingly falsely registered a domain name and knowingly used that domain name in the course of that offense, the maximum imprisonment otherwise provided by law for that offense shall be doubled or increased by 7 years, whichever is less." (Parentheses in original.)

IRS Releases Proposed Rules Regarding Electronic Tax Preparation

12/8. The Internal Revenue Service (IRS) released two related items pertaining to tax return preparers' use and disclosure of tax return information. First, it published a notice in the Federal Register that describes, recites, and sets the comment deadline for proposed changes to its rules implementing 26 U.S.C. 7216. Second, the IRS published in its web site a notice [16 pages in PDF] that describes and contains a "proposed revenue procedure", and requests public comments.

The notice in the Federal Register states that "The current regulations were written in a paper filing era. They do not address current common industry practices, such as electronic preparation or filing of tax returns. The regulations are silent on taxpayers' consent to the disclosure or use of tax return information in an electronic environment. The proposed regulations address these issues."

26 U.S.C. 7216 provides, in part, as follows:

"Any person who is engaged in the business of preparing, or providing services in connection with the preparation of, returns of the tax imposed by chapter 1, or any person who for compensation prepares any such return for any other person, and who knowingly or recklessly--
   (1) discloses any information furnished to him for, or in connection with, the preparation of any such return, or
   (2) uses any such information for any purpose other than to prepare, or assist in preparing, any such return,
shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than 1 year, or both, together with the costs of prosecution."

Mark EversonIRS Commissioner Mark Everson (at right) stated in a release that "Safeguarding of tax return information is critical ... It's vital we update the preparation rules for the 21st century. Americans ought to know when their tax returns are being outsourced and prepared abroad. In particular, I want to thank Massachusetts Rep. Ed Markey and others for drawing our attention to this important issue."

Rep. Ed Markey (D-MA) stated in a release [PDF] that "When I first raised concerns about the privacy issues that the outsourcing of tax preparation services back in February 2004, Commissioner Everson indicated that the IRS shared my concern about these practices and was committed to protecting taxpayers from having their confidential financial information compromised".

Rep. Markey continued that "Today, the IRS is taking an important step to fulfill that commitment by proposing regulations that would require the taxpayer's affirmative consent to be obtained before any tax preparer could outsource information to a foreign entity. This requirement should help ensure that taxpayers retain control over who gets access to sensitive personal information about their finances, since consumers are unlikely to agree to have their tax returns sent to countries with weak privacy protections. I commend Commissioner Everson for taking my concerns about this matter seriously and for ensuring that the IRS takes the lead in protecting taxpayer's privacy rights."

Public comments on both the proposed rule changes, and the proposed revenue procedure, are due by March 8, 2006. The IRS will hold a public hearing on both items on April 4, 2006.

See, Federal Register, December 8, 2005, Vol. 70, No. 235, at Pages 72954 - 72964. The notice containing the proposed revenue procedure it IRS Notice 2005-93.

More News

12/7. The House approved HR 4340, the "United States-Bahrain Free Trade Agreement Implementation Act", by a vote of 327-95. See, Roll Call No. 616. Republicans voted 212-13, while Democrats voted 115-81.

12/7. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet, and Intellectual Property (CIIP) held an oversight hearing titled "International IPR Report Card -- Assessing U.S. Government and Industry Efforts to Enhance Chinese and Russian Enforcement of Intellectual Property Rights". See, prepared testimony of Chris Israel (Coordinator for International Intellectual Property Enforcement at the Department of Commerce), prepared testimony [PDF] of Victoria Espinel (Assistant U.S. Trade Representative for IPR), prepared testimony [PDF] of Eric Smith (President of the International Intellectual Property Alliance), and prepared testimony Joan Vidov (President of Films by Jove, Inc.).

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Washington Tech Calendar
New items are highlighted in red.
Thursday, December 8

The House will meet at 10:00 AM for legislative business. It may consider several non-technology related items under suspension of the rules. See, Republican Whip Notice.

The Senate will next meet on Monday, December 12, 2005.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in CTIA v. FCC, No. 05-1008. This is a petition for review of the final order of the Federal Communications Commission (FCC) that adopted the "Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process", which regulates tower and antenna construction. This order is FCC 04-222 in WT Docket No. 03-128. At issue is whether the FCC has authority under Section 106 of the NHPA, which is codified at 16 U.S.C. 470f, to write these rules. See, stories titled "FCC Announces NPRM Regarding Communications Facilities and the National Historic Preservation Act" in TLJ Daily E-Mail Alert No. 677, June 10, 2003, and "FCC Adopts Report and Order Re FCC Licensing and the National Historic Preservation Act" in TLJ Daily E-Mail Alert No. 975, September 13, 2004. See also, brief [PDF] of the FCC. Judges Tatel, Garland and Griffith will preside. Location: Courtroom 20, Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM. The Business Software Alliance (BSA) and International Data Corporation (IDC) will hold a news conference to announce and describe its report titled "Global Economic Impact Study on Piracy Reduction". The speakers will include Chris Israel, Deputy Assistant Secretary for Technology Policy at the Department of Commerce. Location: Peter Lisagor Room, National Press Club, 529 14th Street N.W., 13th Floor.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Inpro II Licensing v. T-Mobile USA, No. 05-1233. Location: Courtroom 201, 717 Madison Place, NW.

Day three of a four day conference titled "United States IPv6 Summit 2005". Rep. Tom Davis (R-VA), Chairman of the House Government Reform Committee, will speak at 8:30 AM. Admiral Edmund Giambastiani (Vice Chairman of the Joint Chiefs of Staff) will speak at 9:00 AM. Major General Dennis Moran (C4 Systems (J-6), OJCS, DOD) will speak at 9:30 AM. Linton Wells (Assistant Secretary of Defense, NII) will speak at 11:00 AM. Glenn Schlarman (OMB) will speak at 11:50 AM. See, conference web site. Location: Hyatt Regency, Reston, Virginia.

The Federal Communications Bar Association (FCBA) will host an event titled "19th Annual Chairman's Dinner". Location: Washington Hilton Hotel.

Friday, December 9

The House may meet. See, Republican Whip Notice.

RESCHEDULED FROM DECEMBER 15. 9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room). December 9 is Commissioner Kathleen Abernathy's last day at the FCC.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Semitool v. Dynamic Micro Devices, No. 05- 1299. Location: Courtroom 201, 717 Madison Place, NW.

11:00 AM - 12:00 NOON. The Advisory Committee for the 2007 World Radiocommunication Conference will meet. See, notice and agenda [PDF] and notice in the Federal Register, October 19, 2005, Vol. 70, No. 201, at Pages 60840 - 60841. Location: FCC, Commission Meeting Room, TW-C305, 445 12th Street, SW.

Day four of a four day conference titled "United States IPv6 Summit 2005". Gerard Alphonse (President of IEEE-USA) will speak at 8:30 AM. Peter Freeman (National Science Foundation) will speak at 9:00 AM. Hiroaki Kimura (Ministry of Internal Affairs and Communications, Government of Japan) and Hideyuki Oku (National Institute of Information and Communications Technology) will speak on "IPv6 Progress in Japan" at 9:30 AM. See, conference web site. Location: Hyatt Regency, Reston, Virginia.

Deadline to submit initial comments to the Office of the U.S. Trade Representative (USTR) regarding the operation, effectiveness, and implementation of and compliance with (1) the World Trade Organization (WTO) agreements affecting market opportunities for telecommunications products and services of the U.S., (2) the telecommunications provisions of the North American Free Trade Agreement (NAFTA), (3) the U.S. free trade agreements (FTAs) with Chile, Singapore, and Australia, and (4) any other FTAs coming into effect by January 1, 2006. See, notice in the Federal Register, November 16, 2005, Vol. 70, No. 220, at Pages 69621 - 69622.

Sunday, December 11

Deadline for the U.S. Trade Representative (USTR) to submit to the Congress is annual report on the People's Republic of China's compliance with its World Trade Organization (WTO) commitments. See, Section 421 of the U.S.-China Relations Act of 2000, Public Law No. 106-286).

Monday, December 12

The Senate will return from its Thanksgiving recess at 2:00 PM.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in EchoStar Satellite v. FCC, 04-1304. The proceeding pertains to an order of the Federal Communications Commission (FCC) adopting rules implementing the Satellite Home Viewer Extension and Reauthorization Act of 2004, which is now Public Law No. 108-447. See, brief [PDF] of the FCC. Judges Tatel, Garland and Griffith will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The Senate Commerce Committee (SCC) will hold another hearing on decency. Jack Valenti (former head of the MPAA) and Kyle McSlarrow (head of the NCTA) will testify. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. Location: Room 562, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch titled "Meet the Trade Press". For more information, contact Ann Bobeck at abobeck at nab dot org. Location: National Association of Broadcasters (NAB), 1771 N St. NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) portion of the Order and FNPRM that provides that facilities based broadband service providers and interconnected VOIP providers are subject to requirements under the 1994 Communications Assistance for Law Enforcement Act (CALEA). See, public notice [2 pages in PDF] and notice in the Federal Register, October 13, 2005, Vol. 70, No. 197, at Pages 59704 - 59710. The FCC adopted, but did not release, this item at its August 5, 2005, meeting. See, story titled "FCC Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005. The FCC released the text [59 pages in PDF] of this item on September 23, 2005. It is FCC 05-153 in ET Docket No. 04-295 and RM-10865.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) regarding the the specific relocation procedures applicable to Broadband Radio Service (BRS) operations in the 2150-2160/62 MHz band, which the FCC previously decided will be relocated to the newly restructured 2495-2690 MHz band. The FCC also seeks comment on the specific relocation procedures applicable to Fixed Microwave Service (FS) operations in the 2160-2175 MHz band. This NPRM is FCC 05-172 in ET Docket No. 00-258. See, notice in the Federal Register, October 26, 2005, Vol. 70, No. 206, at Pages 61752 - 61762.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the petition for declaratory ruling (DR) filed by Grande Communications that seeks a DR regarding the treatment of traffic terminated through Grande to end users of interconnected local exchange carriers (LECs), in circumstances where customers of Grande have certified that the traffic originated in Internet protocol (IP) format. See, notice in the Federal Register, November 2, 2005, Vol. 70, No. 211, at Pages 66411 - 66412. See also, story titled "FCC Sets Comment Deadlines for DR Petition on IP Originated VOIP Traffic and Intercarrier Compensation" in TLJ Daily E-Mail Alert No. 1,246, November 3, 2005. This proceeding is WC Docket No. 05-283.

Tuesday, December 13

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing on the nominations of Deborah Tate and Michael Copps to be members of the Federal Communications Commission (FCC). Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. See, notice. Location: Room 106, Dirsksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Legislation and IP-Based Communications Practice Committees will host a brown bag lunch titled "Legislative Reform Affecting IP-Based Services". RSVP to Wendy Parish at wendy at fcba dot org. Location: Verizon Wireless, 1300 Eye Street, NW, Suite 400 West.

1:00 PM. The House Commerce Committee's (HCC) Subcommittee on Oversight and Investigations will hold a hearing titled "Safety of Imported Pharmaceuticals: Strengthening Efforts to Combat the Sales of Controlled Substances Over the Internet". The hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a business meeting. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. Location: Room 106, Dirsksen Building.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "2005 Intellectual Property Law Review Series, Part 1: Copyright, Trademark and Internet Update". The speakers will include Brian Banner (Banner & Witcoff), Beckwith Burr (Wilmer Cutler), and Terence Ross (Gibson Dunn & Crutcher). The price to attend ranges from $70-$125. For more information, call 202 626-34638. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Wednesday, December 14

11:00 AM. The Senate Finance Committee will hold a hearing on several nominations, including that of David Spooner to be Assistant Secretary of Commerce for Import Administration. Location: Room 215, Dirksen Building.

6:00 -8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "2005 Intellectual Property Law Review Series, Part 2: Patent Law Update". The speakers will include Bradley Wright (Banner & Witcoff) and Eric Wright (Morgan & Finnegan). The price to attend ranges from $70-$125. For more information, call 202 626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Thursday, December 15

RESCHEDULED FOR DECEMBER 9. 9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

10:00 AM. The Internal Revenue Service (IRS) will hold a public hearing on its notice of proposed rulemaking (NPRM) regarding the source of income derived from international communications activity. See, notice in the Federal Register, September 19, 2005, Vol. 70, No. 180, at Pages 54859 - 54878. Location: Auditorium, Internal Revenue Building, 1111 Constitution Ave., NW.