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On September 3, 2003, United States federal law enforcement officers arrested the notorious John Zuccarini accused of allegedly creating misleading domain names to deceive children and direct them to pornographic websites. Zuccarini’s arrest is the first to be made under the Truth in Domain Names Act, which took effect earlier this year prohibiting people from creating misleading domain names as a means to deceive children into viewing content that’s harmful to minors, or tricking adults into clicking on obscene websites.
What follows is a collection of commentaries made by experts in response to this event:
James B. Comey, U.S. Attorney for the Southern District of New York
“Few of us would imagine that there was someone out there who was, in effect, reaching through cyberspace to take that child by the hand to one of the seediest corners of the Internet…Children make mistakes…the idea that someone would take advantage of that, of a young girl, for example, trying to go to the American Girl Web site to look at dolls or a child trying to visit the Teletubbies Website, and mistypes, to take advantage of those mistakes to direct those children to pornography sites is beyond offensive…We cannot imagine a better way for this law to be used for the first time.”
Mike Pence, Congressman and Author of the “Truth in Domain Names Act” Signed into Law by President George Bush
“I found in sitting down with my kids to do their homework on the Internet, that you could type in the most innocuous phrases, and that you literally had to cover their eyes before you activated the Website.”
Lawrence G. Walters, Attorney at Weston Garrou & DeWitt - FirstAmendment.com
“The PROTECT Act was a misleading piece of legislation that was sold to Congress as an Amber Alert Bill, but was really a law aimed squarely at the adult Internet industry. It is a dangerous precedent, from a First Amendment standpoint, to criminalize one’s choice of domain names. While the courts are split as to whether a domain name, itself, constitutes protected speech, the focus of this law is clearly on the content of identifying communications themselves. Any such content-based restriction on speech is presumed to be unconstitutional under First Amendment jurisprudence. This case may provide the vehicle by which the Truth in Domain Names Act can be challenged, and perhaps be held unconstitutional.”
Benjamin Edelman, Harvard Law School Student and Researcher at its Berkman Center for Internet & Society
“One big puzzle—and, to be sure, a big disappointment—is the fact that Zuccarini’s arrest has taken so long, and that his domains remain operational even to this day. The FTC has been after Zuccarini since 2001 and a court ordered shutdown of his domains in 2002 as well as payment of a $1.8 million fine (still not collected, to the best of my knowledge). Zuccarini was reportedly in Bahamas for at least some of the intervening time, which might explain difficulties in collecting the fine and in bringing about his arrest. But shouldn’t the ICANN process facilitate the disabling and cancellation of these domains, subsequent to the order of a court of competent jurisdiction, rather than dragging the procedure out for so many years? In the interim, as my research documented, Zuccarini continued to operate thousands of domains likely to be stumbled on by children and other unsuspecting visitors, and certain to show them pornographic images and to prevent easy exit—making domain cancellation delays all the more serious.”
Eric Goldman, an Assistant Professor at Marquette University Law School in Milwaukee.
“Zuccarini has been notorious for years, so to think he would finally get busted for this is kind of like seeing the end of the line for (computer hackers Kevin) Mitnick or (Kevin) Poulson…I think millions of Internet surfers may cheer at the thought of Zuccarini receiving some rough justice. However, the idea of putting someone in jail based on their choice of domain names should make us all concerned. I could see some First Amendment problems with this prosecution, because fundamentally it criminalizes Internet speech, and the courts have not been kind to Congress’ attempts to do that in the past.”
Doug Isenberg, Editor and Publisher of GigaLaw.com and an Atlanta Attorney Specialized in Internet law
“The law itself is a bit unclear about using a misleading domain name. While Zuccarini allegedly engaged in misleading activities, it’s not clear what a misleading domain name is…and a law that is vague is unconstitutional under the First Amendment. I would not be surprised if he challenges the law as vague and, therefore, unconstitutional. And anytime a new law is challenged in the courts for the first time, it gives an indication of the breadth or limits of the law itself. Depending on how this arrest plays out, it will ultimately tell us about the strength, or weakness, in the Truth in Domain Names act.”
Bret Fausett, Internet and Technology Attorney and Publisher of the Popular Weblog ICANN.Blog
“Zuccarini didn’t register typographical errors of children’s sites as domain names because he wanted to expose children to pornography; he did it because someone was paying him to do it. That’s one of the problems when web site operators use a “pay per click” model to reimburse those who direct traffic to their sites. With “pay per click,” all Zuccarini cared about was generating traffic—he didn’t care about the quality of the traffic for the site owner. Had the operators of the pornography sites paid a referral fee only for, say, new members, the incentives would have been completely different. That’s not a defense, of course, but it does suggest that we’ll see more enterprising John Zuccarinis in the future so long as the market rewards his style of behavior.”
Filed FTC Papers, Referring to Zuccarini’s “Mousetrapping” Technique
“After one FTC staff member closed out of 32 separate windows, leaving just two windows on the task bar, he selected the back button, only to watch as the same seven windows that initiated the blitz erupted on his screen, and the cybertrap began anew.”
Andy Sullivan, From Reuters
“Spammers, scammers and child pornographers can hide easily on the Internet because regulators allow them to register under false names with stolen credit cards, lawmakers and technology experts said Thursday.
One day after U.S. attorneys charged a Miami man with using misspelled domain names to direct Web surfers to pornography sites, lawmakers said the manner in which domain-name sellers collect information about their customers is too lax.
A new law to require accurate customer data might be necessary because the U.S. Department of Commerce and other oversight bodies have not been doing their job, lawmakers on the House of Representatives intellectual-property subcommittee said.”
Timothy J. Muris, Chairman of the FTC
“Schemes that capture consumers and hold them at sites against their will while exposing Internet users, including children, to solicitations for gambling, psychics, lotteries, and pornography must be stopped. In addition to violating the trademark rights of legitimate Website owners, the defendant may have placed employees in peril by exposing them to sexually explicit sites and gambling sites on the job, in violation of company policies. With more than 63 previous law suits against him for the identical practices, we believe the court will shut down the defendant’s schemes permanently.”
Anonymous, Posted on Slashdot
“How can anybody get through to one of these sites and spend any money with them if their computer is crashing from the overload of trying to open half a zillion pages at once? Is this guy covertly doing these people a favor by luring those who would spend their money at those sites and frustrating them to the point of giving up?”
Anonymous, Posted on Slashdot
“The guy was only exploiting a system that pays money based on “impressions” or “exposures.” He set up traps that generated as many ad exposures as possible, but it made no difference to him whether the ads made a possitive impression on anyone. This is why most of the ads were for porn, since he needed advertisers who didn’t check what the presentation of their ads would look like or the nature of the site itself. Outside of porn, few advertisers are that lax any more. I’m sure that, given a choice, even porn advertisers would want a “friendlier” presentation than this guy gave them. But they don’t care enough to even check. In the mean time, this guy was raking in a hundred or more ad exposures per victim.”
Richard Keyt, Arizona Attorney and Publisher of KEYTLaw.com
“According to the FTC, the scheme works like this: The defendant registers Internet domain names that are misspellings of legitimate domain names or that incorporate transposed or inverted words or phrases. For example, he registered 15 variations of the popular children’s cartoon site, www.cartoonnetwork.com, and 41 variations on the name of teen pop star, Britney Spears. Surfers looking for a site who misspell its Web address or invert a term - using cartoonjoe.com, for example, rather than joecartoon.com - are taken to the defendant’s sites. They then are bombarded with a rapid series of windows displaying ads for goods and services ranging from Internet gambling to pornography. An FTC investigator entered one of the defendant’s copycat domain names, annakurnikova.com , and 29 browser windows opened automatically. In some cases, the legitimate site to which the consumer was attempting to go is also launched, so that consumers may think the hailstorm of ads to which they are being exposed is from a legitimate Web site.”
John Zuccarini, During the Philadelphia Case
“One reason I registered so many domain names which are of interest to children and teenagers is because teenagers and young people tend not to know how to spell.”
John Zuccarini, Email Sent to One of the Opposing Lawyers During a 1999 Case
“You do not own the Internet!!! People can say and do whatever they want!!!”
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In the end the record, TV, Movie and pornography industries will steal the greatest tool to hit the common person. The internet.
Would it be too simple toput a rating class or code such as used on tv and movies with the site address giving parents the opportunity to set restrictions on sites with the parental control option on their computer?
Yes it would be easy to classify what is on the net like movies are done now. However somone has to pay for the government employees to do the work. Forms would have to be filled out blah blah blah. It takes a credit card and 15 minutes to have a web domain. In one Saturday I can have a site setup and looking good. This ability (freedom) would dissappear.
The facts of this case have been terribly twisted and misconstrued by the press, and even by commentators. A proper analysis easily demonstrates that Zuccarini is NOT guilty of violated the Truth in Domains Law:
Here is the exact language of the law Zuccarini was charged with violating:
“Whoever knowingly uses a MISLEADING DOMAIN NAME on the Internet with the INTENT TO DECEIVE a minor into viewing material that is harmful to minors on the Internet shall be fined under this title or imprisoned not more than 4 years, or both.”
As you can see, The Truth in Domains Law has TWO elements. First, the violator must use a “misleading domain.” It is fairly clear that Zuccarini did this by using typos. But that’s only half the law. The second element of the law is that the domain be used “with the INTENT TO DECEIVE” someone into seeing pornography. The alleged porn page that Zuccarini’s domain name popped up was http:// hanky-panky-college.com This page has NO PORN, NO PICTURES, AND NO OBSCENE LANGUAGE AT ALL. The entire page is a WARNING and porn is ONLY seen if the ENTER button is clicked. Those under 18 are warned they do not have permission to click enter and Zuccarini even recommends filters to avoid receiving porn. If a user exits the hanky-panky-college.com splash page, the window closes and NO PORN is displayed. There are 3 pop-up windows for non-porn material.
Anyone wishing to understand, or offer an intelligent and reasoned comment about this case should look at http:// hanky-panky-college.com for themselves and see whether Zuccarini INTENDED TO DECEIVE anyone into seeing porn. He may have intended to give them a chance to see it—but he certainly warned them of what they would see if they clicked enter and by exiting they would have seen no porn. You can also check how hanky-panky-college looked historically by going to http:// archive.org. You will see that the warning page existed when the law was passed. Amazingly, the allegations in the complaint even mention the warning page—but they still charged him with violating the law.
Vague or not, the facts as they stand do NOT demonstrate that Zuccarini violated any criminal law. What he did may have violated trademark laws, but those facts do not amount to a violation of the Truth in Domains Law.
I think that trying to regulate an entity(the internet)that was never meant to be regulated is a bad thing. If no one person owns it, then no one can enforce any rules on it. If someone does own it, then they better show themselves and officially lay claim to it. You see, the parents want the government to raise their kids for them. So the parents slam their fist up and down on their own hichair trays until a law gets past to “protect” their kids. So the parents with prominent last names can do everything but be responsible for their own childrens activities. Like unsupervised internet access. Parents make me sick these days. - .(JavaScript must be enabled to view this email address)
It looks like Congress owns the Internet. ICANN licks their boots.
Call me excessively suspicious, but is it really just a coincidence that news of criminal charges against Mr. Zuccarini should so closely precede the Wall Street Journal’s coverage of announcements by Verisign (a really creepy company if there ever was one—and one inclined to share Mr. Zuccarini’s view that the government just needs to get out of the way of “entrepreneurs,” so they can make up their own rules unilaterally) and by other Internet ‘insiders’ about how they plan to capitalize on users’ typographical errors?
If imitation is the sincerest form of flattery, it seems to me that Mr. Zuccarini has been paid a very high compliment this week—and, in some ways, he may have been thinking way ahead of AOL, Microsoft, and Verisign.
Not that I’m any fan of John Zuccarini. I’ve entered a typo or two in my browser from time to time, and found his method of doing business quite a nuisance. Sometimes those pop-up boxes just make me spitting mad. But does that mean he needs to be put in jail for it? Or even put through arrest and trial (even if acquitted)? I’m skeptical.
Frankly, Zuccarini’s pop-ups are not all that much more of a nuisance than the constant, annoying “free market” ideological mantra routinely recited in the media by the very Members of Congress and Justice Department officials who are making a public show now out of “catching” Zuccarini and punishing him for . . . well, they’re punishing him for responding to the exact same free-market incentives that they purportedly celebrate and expect all the rest of us to embrace. Or is their support of the free market more like the approach to equality taken by the Pigs in ‘Animal Farm:’ i.e, All animals are equal, but some are more equal than others?
Continued below…
If we look to actions of our governmental leaders as evidence, then, apparently, the free market is just great when it favors fat-cat campaign donors, so don’t regulate stuff like the environment or race discrimination or working conditions—but our current crop of leaders don’t really seem to be much in favor of the “free market” when smaller businesses are on the receiving end of regulation—and they’re awfully pro-government and anti-market when it comes to stuff like sex, drugs, and music. So what gives?
Could it be that there’s something of a double-standard here? Maybe the government could spend its time in much more constructive (though, politically, more challenging) ways, by taking on some real wrong-doers (e.g., Size, Inc. v. Network Solutions, Inc., No. 03-CV-026-A (E.D. Va. Apr. 1, 2003), handed down appropriately on April Fools’ Day, shows that the problem of reliability and stability in the domain name assignment system was hardly isolated to the Kremen v. Cohen, No. 01-15899, __ F.3d __ (9th Cir. July 25, 2003), episode)—instead of spending resources on easy ‘symbolic’ scapegoat targets like Zuccarini, or numerous ‘hackers’ who have regularly been screwed over by the ‘justice’ system.
The very same incentives that Verisign and AOL are, evidently, celebrated for responding to, in the pages of the Wall Street Journal, are the same ones that Zuccarini is condemned for embracing. Then again, Martha Stewart is being prosecuted under the securities laws and Ken Lay isn’t. Go figure.
With all of the lawsuits and finger pointing going around these days over domain names and the uses of these names, something occurs to me.
We are becoming a society that?s goal seems to be making ourselves totally free of any responsibility. We don?t want to be responsible for our children?s actions or our own. Even if this means giving up freedom after freedom and pushing this country to the point of communism. All the crying and finger pointing is only leading to more and more legislation which is robbing every one of rights, not just the ?bad guys?. I don?t think most Americans realize that in ?protecting? themselves with legislation, they are signing away freedom and it is very difficult to take it back once it is gone.
If a child has unsupervised access to the internet within their own home and comes across a page (perhaps pornography) that the parents are offended by, who is to blame? Well, the parents who are crying about it will tell you that it is certainly not their fault or the fault of the ?innocent child?. They want the person who created the offensive site to be blamed and punished! Are parents so lazy now days that they can?t monitor their child while they are on the internet? The short answer; Yes.
I have become sick with parents blaming everyone from video game creators, musicians, movie makers to web site creators for their children?s bad behavior. Here?s a wacky idea?.why don?t you raise your child and participate in their life? Parents need to stop expecting the government and the school district to raise their children for them. You can?t take away everyone?s rights in this country to facilitate you not wanting to raise your own child.
Parents seem to want the government to just make everything that they don?t want their children to have illegal, this way they don?t have to pay attention to their child! When I hear of a disturbed teenager killing a handful of his classmates of course it troubles me. But, what troubles me even more is when I hear the parents say ?He did it because he played this violent video game too much?. Excuse me Mom & Dad?.who let him?
Buck up people. Before you climb up onto your high horse ready to hold everyone you find offensive responsible for their actions, how about taking responsibility for your own first?
Looking at the criminal complaint, it appears that the operation of Zuccarini’s domain name had changed in a subtle, yet potentially significant way, since the Truth in Domain Names Act took effect. While all of the UDRP, ACPA, and FTC actions make for interesting reading, the fact of the matter is that all of those events preceded passage of the law under which Zuccarini was arrested. Anything he did before the law took effect is, of course, completely irrelevant to whether he is guilty under the law.
However, reading the statement of the postal inspector in the complaint, it appears (as it appears to me now on testing several names) that there were no pornographic pop-ups that resulted from merely typing in the domain name. What the complaint says is that a typographic error would result in the user being directed to a warning page which referred to “Adults Only” content, and provided the user with the opportunity to enter or not to enter. Then, the postal inspector clicked enter, and began the well-known journey into browser Hell.
If it is in fact true that Zuccarini was using misleading domain names in order to re-direct users to a warning page with no pornography on it, that is distinguishable from using a misleading domain name to re-direct users to actually view pornography. That second scenario is what the law forbids. But, once one has mistyped a domain name, and is then looking at a warning page distinguished by the absence of pornography on it, then one is no longer deceived about what is going to happen when one clicks “enter”.
Let’s see, people use a very bad piece of software that is designed with serious security flaws in it, like allowing someone to open 29 windows automatically and yet no one points a finger at the software? Use any browser without the Microsoft name on it and blocking these types of ads is trivial. Microsoft however, has no interest in giving users the tools to be able to evade popup ads, just as they have no interest in securing their software agains the tens of thousans of viruses which are unique to the Microsoft “experience.” Get Linux, get FreeBSD, or best, get a Mac. Either way, you ca say fareweel to popup ads and viruses.