[bc-gnso] FW: New Post on Fake Political Websites

[Phil Corwin <psc@xxxxxxxxxxx>]

BC members may find this of some interest...

Subject:  New Post on Fake Political Websites

http://www.internetcommerce.org/Fake_Political_Websites

Fake Political Websites Draw Attention in DC

Controversy continues to build in Washington, DC regarding an online campaign 
against Democratic candidates for the House being conducted by the National 
Republican Campaign Committee. As just reported by National 
Journal<http://www.nationaljournal.com/politics/under-fire-gop-adjusts-fake-democratic-campaign-sites-20140217>,
 the NRCC recently adjusted the arguably misleading series of websites and 
"changed the donation page to make clearer to potential contributors that their 
money wasn't going to the smiling Democrats pictured but instead to the 
Republicans". The article focuses on the GOP-registered website 
www.nickrahallforcongress.com<http://www.nickrahallforcongress.com>  which 
features a large photo of the West Virginia Congressman and then proceeds to 
describe votes he cast that allegedly could cost thousands of coal mining jobs 
in that state. The bottom of the webpage does display this: "Paid for by the 
National Republican Congressional Committee and not authorized by any candidate 
or candidate's committee. www.nrcc.org<http://www.nrcc.org/>."
An earlier 
article<http://www.nationaljournal.com/politics/republican-look-alike-sites-mocking-democrats-may-violate-rules-20131212>
 on the same website campaign noted that some of the GOP-backed websites were 
mimicking the design of the Democratic candidates' official websites, and that 
the NRCC was purchasing search ads to promote the websites so that the faux 
website would be the first result returned when the targeted candidate's name 
was Googled. That article notes, "Under Federal Election Committee (FEC) 
regulations<http://www.gpo.gov/fdsys/pkg/CFR-2013-title11-vol1/pdf/CFR-2013-title11-vol1-sec102-14.pdf>,
 political committees cannot use a candidate's name in a "special project," 
such as a microsite, unless it "clearly and unambiguously shows opposition to 
the named candidate." Some campaign finance experts and outside campaign 
watchdog groups contend that the NRCC websites cross the line and violate the 
FEC regulations, but Republican spokespersons defend them as "100 percent 
legal". The FEC is highly unlikely to crack down on the practice because the 
Commission is evenly split and highly gridlocked between three Democrats and 
three Republicans.
With the FEC unlikely to act and the NRCC clearly not backing down, it will be 
interesting to see if any of the targeted candidates tries to shut down a faux 
website through an action brought under the Anticybersquatting Consumer 
Protection Act 
(ACPA<http://en.wikipedia.org/wiki/Anticybersquatting_Consumer_Protection_Act>).
 Like the UDRP and URS, that U.S. law prohibits the bad faith registration and 
use of a domain that is identical or confusingly similar where there is intent 
to profit, and in addition to trademarks the Act also covers "a famous personal 
name" (that could lead to judicial consideration of the issue of whether all 
members of Congress, as well as first -time candidates who have yet to be 
elected, are "famous" for ACPA purposes). One of the factors that a court may 
consider in regard to finding bad faith under the ACPA is whether the 
registrant has engaged in the registration of multiple domain names known to be 
identical or confusingly similar to marks protected under the Act. On the other 
hand, the Savings Clause of the Act preserves fair use defenses under the 
Trademark Act as well as "a person's right of free speech or expression under 
the first amendment of the United States Constitution" - and we presume that 
the NRCC would argue that it was only exercising its First Amendment rights to 
criticize the positions of the targeted Democrats. U.S. courts are generally 
loathe to wade into and decide political disputes.
While the NRCC's Democratic counterpart has apparently not engaged in such 
tactics (yet), we'd be surprised if Democrat candidates or their supporters 
hadn't registered similar websites targeting Republican opponents. With all the 
independent money sloshing around U.S. politics these days it's almost 
inevitable that such deliberately confusing websites will gain wider use as a 
campaign tool.
New gTLDs are likely to figure in this practice going forward. The Republican 
State Legislative Committee (RSLC) succeeded in its bid to acquire .gop as a 
gTLD for use solely by Republican candidates (no similar bid was made for an 
official Democratic Party gTLD). But the RSLC's community objection to 
.republican failed, and the same portfolio applicant behind that bid will also 
soon be opening .democrat to domain registrations as well. So we suppose it 
won't be long before these types of websites migrate to those new gTLDs, with 
the right-of-the-dot label arguably further confusing voters in regard to their 
origin and sponsorship.
All of this political squabbling will add an interesting background to any 
future Congressional discussion of the adequacy of the ACPA in the era of new 
gTLDs.



Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

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