What’s in a Name?: Predictably Regulating Cyberfraud to Protect the Democratic Political Process

Download

Whitney C. Boshers · 14 Vand. J. Ent. & Tech. L. 127

Abstract

In recent elections, political candidates have capitalized on the Internet as a central organizing resource. As a result of the low-cost, high-reward nature of campaign websites, some candidates have begun to register Web addresses—or domains—in opponents’ names in order to disrupt the democratic political process. Engaging in a practice known as cyberfraud, these individuals register for domains containing the candidate’s name, such as “firstnamelastname.com.” Then, instead of finding themselves on the candidate’s official campaign website, voters access a website operated by the candidate’s opponent that contains misleading or outright false information. Unfortunately, most political candidates have little recourse for such subversion of an informed voting process.

This Note analyzes the existing law’s failure to regulate cyberfraud in federal elections. Candidates may file trademark lawsuits or submit to the arbitration of the Internet Corporation for Assigned Names and Numbers (ICANN)—the body responsible for regulating Internet-related tasks, such as authorizing domain use. However, this Note explains why trademark law and its commerciality requirements are inadequate to protect against cyberfraud. While the US Congress could enact legislation specifically aimed at preventing cyberfraud, this Note argues that First Amendment concerns make this remedy unlikely. Finally, while California has provided a model for lessening the impact cyberfraud has on elections, the possibility of each state sufficiently and uniformly regulating cyberfraud is also unlikely. This Note proposes that, because of the obstacles presented by legislative remedies, the Federal Election Commission (FEC) should submit an application to ICANN’s new program expanding top-level domains (the “.com” or “.net” portion of the web address) to match the domain holder’s interests. With this system, the FEC may distribute official campaign websites to federal candidates in the form of “firstnamelastname.fec” and opponents may criticize candidates on other websites that the public would know are not official sites of those candidates.