Who Owns 'Hillary.Com'? Political Speech and the First Amendment in Cyberspace

Abstract

In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns "hillaryclinton.com", the more generic "hillary.com" is registered to a software firm, Hillary Software, Inc. What about "hillary2008.com"? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain name law and policy as to domain name use in the political context. Current domain name policy is focused on protecting trademark uses of domain names against bad faith commercial "cybersquatters". It does not deal with protecting important uses of domain names as part of the political process. This article identifies the current problems with Internet domain name policy in the political context and makes recommendations for developing clearer guidelines for uses of political domain names. In so doing, it creates a new categorization system for different problems confronting the political process in cyberspace, including: (a) socially and economically wasteful political "cybersquatting"; (b) politicial "cyberfraud" which might involve conduct such as registering a politician's name as a domain name to promulgate a misleading message about the politician; and, (c) competition between politicians' names and competing trademark interests.

Keywords: Internet domain name, election, trademark, cybersquatting, cyberfraud, First Amendment

JEL Classification: K00, K10, K13, K19