In a moment sure to rival Senator Ted Stevens’ insistence on the tubular nature of the Internet, House Majority Leader Morgan Griffith (R-8) has sponsored HB409, a bill that would make it illegal to…okay, I’ll just paste the summary here.
Unauthorized use of person’s name in website address; damages. Provides that a person who uses the name of another in an internet website address without the written consent of such other person and with the intent to deceive the public that the website is owned, operated, or authorized by such other person is liable to that person for damages in the amount of $1,000 or three times the amount of actual damages, whichever is greater.
Let’s forget that this bill has numerous enforcement questions at the moment (do DNS servers, hosting servers, the registrar, the registree, the victim, or anyone have to be physically located in Virginia? And what about ICANN, the agency responsible for domain registrations, which is headquartered in California?), and gawk at the terrifyingly bad idea.
In 1996, Al Franken wrote a satricial book entitled Rush Limbaugh Is A Big Fat Idiot and Other Observations. Should Mr. Limbaugh be able to sue Mr. Franken for damages for using his name in the title of a book?
Let’s imagine that Mr. Franken, instead of writing a book, simply pasted the content onto a website called rushlimbaughisabigfatidiot.com. Supposing that HB409 was in any way enforceable (a big assumption), Mr. Limbaugh would be able to extract damages from Mr. Franken for using his name in a manner that he did not like.
Wait, you say. Didn’t you read the part about deceiving the public into thinking that the website is “owned, operated, or authorized by such other person”?
Remember Harriet Miers, failed Supreme Court nominee? One enterprising blogger started up a satricial blog impersonating Miers at harrietmiers.blogspot.com. The site was clearly satire, and clearly not Harriet Miers. Regardless, the anonymous perpetrator could have been successfully beaten over the head with the long arm of the law by the real Harriet Miers.
It’s a brave new world.
2 Comments
This is a terrible bill. Could Larry Sabato kill NLS? Wait- could I sue Ben Tribbett Watch? Hmm…
Neither you nor NLS understands the bill. No, Larry Sabato could not kill the bill, nor could NLS sue Ben Tribbett watch. In neither case do the websites involve purport to be owned, operated, or authorized by their eponyms. For the same reason, the Franken-Limbaugh example is irrelevant.
There are no “enforcement questions” because the bill does not criminalize activity. There is no “enforcement.” Essentially this does nothing more than codify and marginally expand the common law cause of action for false personation, increasing the amount of recoverable damages from the actual amount of damages to the greater of $1000 or treble damages.
For the same reason, there is no First Amendment implication. First, the private individual whose name is trespassed upon is a not a state actor when he sues under this section, so the government is not the entity stifling speech when that person sues. Second, to the extent that the government could be a state actor by codifying an expanded common law action and increasing damages, it’s well within the bounds of the government’s police power to prevent fraud and trespass, which are not constitutionally-protected speech.
This is not targeting Hamilton writing the Federalist Papers as Publius. This is targeting Hamilton writing “I did Sally Hemmings. She was hot. Signed, Thomas Jefferson.” It would be reaching anyone who launched “kentonngo.com,” dedicated to how much the author, putatively Kenton Ngo, liked eating babies. Or cheating on exams in high school. Or procuring election fraud.
So, yes, it would reach the harrietmiers site, but only if Harriet Miers decided to sue and if the tortious conduct fell within the reach of Virginia’s long-arm statute for personal jurisdiction. (She doesn’t live in Virginia, as far as I know.) The long-arm statute and federal due process jurisprudence determine whether or not a defendant can be sued in state court in a private action. Moreover, ICANN, the webhost, the registrar, &c., would not be defendants to an action under this law because they are not the “person using the name of another.” So all of the objections you present here are without merit.