- Impact
- 3,028
Approved: JOSEPH V. De MARCO
Assistant United States Attorney
Before: HONORABLE GABRIEL W. GORENSTEIN
United States Magistrate Judge
Southern District of New York
- - - - - - - - - - - - - - - - - - - x
UNITED STATES OF AMERICA,
- v.- :
JOHN ZUCCARINI, : 18 U.S.C. § 2252B(b)
Defendant.
COUNTY OF OFFENSE: NEW YORK
: SEALED COMPLAINT
- - - - - - - - - - - - - - - - - - - x
SOUTHERN DISTRICT OF NEW YORK, ss.:
ROBERT FRATERRIGO, being duly sworn, deposes and says
that he is a Postal Inspector of the United States Postal
Inspection Service ("USPIS"), and charges as follows:
COUNT ONE
(Misleading Domain Names On The Internet)
1. From at least on or about May 19, 2003, to at
least on or about August 7, 2003, in the Southern District of
New York and elsewhere, JOHN ZUCCARINI, the defendant,
unlawfully and knowingly used a misleading domain name on the
Internet to deceive a minor into viewing material that is
harmful to minors, to wit, JOHN ZUCCARINI, the defendant, as
reflected in Exhibit A to this Complaint, registered and used
misspellings and variations of the Internet Web site domain
names for Web sites primarily of interest to minors, in order to
deceive minors into viewing, among other things, photographic
depictions of nudity and sexual intercourse depicted on those
Web sites.
(Title 18, United States Code, Section 2252B(b).1)
1 Enacted Apr. 30, 2003, Pub. L. 108-21, Title V, § 521(a).
I. Introduction
2. I am a Postal Inspector with the United States
Postal Inspection Service (“USPIS”) and have been a Postal
Inspector since 1994. Since in or about 1999, I have
specialized in the investigations of crimes involving the
improper use of computers, computer systems, and the Internet.
Based upon my training as a Postal Inspector, and my experience
investigating computer and Internet crimes, I am familiar with
several of the means by which individuals use computers and the
Internet to commit various criminal offenses. Because this
Affidavit is being submitted for the limited purpose of
establishing probable cause, I have not included every detail of
every aspect of the investigation. Rather, I have set forth
facts in order to establish probable cause to arrest JOHN
ZUCCARINI, the defendant. In addition, the information
contained in this Affidavit is based upon conversations with
other government officials, including attorneys and
investigators employed by the Federal Trade Commission; my
review of various arbitration panel decisions and court
opinions; sworn deposition testimony from various civil actions
to which ZUCCARINI was a party; and my personal observations and
knowledge. Unless specifically indicated otherwise, all
conversations and statements described in this Affidavit are
related in substance and in part only.
II. The Internet and The Domain Name Registration System
3. Based on my training and experience, as well as
various publications that I have read, I know that the Internet
is an immense worldwide computer network used by millions of
individuals daily. In addition, I am aware that The World Wide
Web (the "Web") is a hypertext-based computer system that
facilitates the ability to find and access information on the
Internet through Web sites. Many businesses and entertainment
celebrities use Web sites to advertise, promote, and provide
information about themselves. Typically, a person who wishes to
view an Internet Web site installs a computer modem and computer software called a “Web Browser” on their computer, and types the Web site’s Uniform Resource Locator (colloquially referred to as the Web site’s “domain name”), in the address bar of their Web Browser. Based on my experience using the Internet, I am aware that a Web Site’s domain name will often be the name (or an abbreviation of the name) of the entity maintaining the Web Site preceded by “www.” and followed by a suffix indicating the type of entity maintaining the Web site –- for example, “.com” for businesses, “.org” for organizations, or “.gov” for governmental entities.
4. Based on materials I have read, I am aware that
persons and entities who wish to maintain a Web site on the
Internet must register the Web site’s domain name with one of
several companies, known as Internet Registrars. These Internet
Registrars are authorized to register Internet domain names by a
corporation known as the Internet Corporation for Assigned Names and Numbers (“ICANN”). Based on materials I have read, I am aware that Internet Registrars often charge a yearly (or biyearly) fee to the registrant for the exclusive use of a
particular domain name by that registrant. Examples of Internet
Registrars include Nominalia and Joker, two Internet Registrars
used by JOHN ZUCCARINI, the defendant.
5. Based on conversations I have had with Federal
Trade Commission officials, I am aware that ICANN has adopted a
Uniform Domain Name Resolution Policy (“UDRP”), enforced by
approved dispute resolution service providers accredited by
ICANN, to arbitrate disputes among persons concerning domain
names. In addition, based on conversations I have had with
Federal Trade Commission officials, as described more fully
below, I am aware that federal laws provide for certain civil
remedies where domain names are registered that may infringe
upon trademarks.
III. Initial Investigation
6. On or about November 25, 2002, I met with a
lawyer and two investigators assigned to the Bureau of Consumer Protection, Division of Marketing Practices, of the Federal Trade Commission (collectively, the “FTC Officials”). The FTC Officials informed me that they had recently brought a civil
enforcement action against JOHN ZUCCARINI, the defendant,
alleging that he had violated federal law by engaging in unfair
and deceptive practices. Specifically, the FTC Officials
informed me that ZUCCARINI had registered thousands of domain
names which consisted of slight variations (e.g., transposed
letters, misspellings, etc.) of popular domain names, and that
ZUCCARINI was using these domain names to generate advertising revenue from advertisers for pornographers, among others, who paid ZUCCARINI to direct Internet users to their Web sites. As the FTC Officials described it, whenever an Internet user typed a domain name registered by ZUCCARINI in the address bar of their browser, they were barraged with a series of
advertisements -- many of which were for pornographic web sites
–- and found it difficult, and in some cases impossible, to exit
from these Web sites without shutting down their computer.2 As
described more fully below, ZUCCARINI has engaged in the
practice of registering misleading domain names with the
knowledge that his activities cause confusion and deception
among Internet users, and with knowledge that his activities
violate the rights of holders of existing domain names.
7. According to the FTC Officials, the FTC had
received numerous complaints from consumers who, through
misspellings or typographical errors, had inadvertently accessed
Web sites controlled by JOHN ZUCCARINI, the defendant, and had
unwittingly found themselves barraged by advertisements for,
among other things, Web sites offering pornography. The FTC
Officials informed me that ZUCCARINI had (1) been engaged in the business of registering mispellings of common Internet domain names on a large scale for many years; (2) had been the subject of numerous legal actions brought by the registrants of Internet domain names associated with legitimate products and services;
and (3) had been permanently enjoined from this practice by the
United States District Court for the Eastern District of
Pennsylvania following a civil action by the FTC against
ZUCCARINI. The FTC Officials further informed me that
2 Based on articles and court opinions that I have read, I
am aware that this practice of preventing Internet users from
exiting a Web site or Web page is often referred to as
“mousetrapping.” Typically, when an Internet user is
“mousetrapped,” he or she finds that many common Internet
commands do not function properly. For example, rather than
returning the user to the previous Web page, hitting the “back”
button command will launch the opening of new Web pages.
Similarly, hitting the “close” button command may also open new
Web pages. Moreover, even when an Internet user does nothing,
new Web pages may open, barraging the user with images and data
they did not intend to receive. Often, the only way for the
user to exit this “cyber-maze” is for them to shut off their
computer, thereby potentially losing any unsaved data on their
computer. According to FTC officials, JOHN ZUCCARINI, the
defendant, combined mousetrapping techniques with other
programming tactics to bombard consumers with unwanted
advertisements for, among other things, pornography.
ZUCCARINI’s whereabouts were unknown; that ZUCCARINI had no
known legal address; and that ZUCCARINI had a history of failing
to respond to complaints and deposition notices and of evading
attempts at service of process by federal marshals. The FTC
Officials informed me that, according to testimony in prior
civil actions, by his own admission ZUCCARINI (1) was aware that
many of his domain names consisted of the misspellings of domain
names specifically associated with Web sites which appealed to
minors, and (2) earned between $800,000 and $1,000,000 per year
in advertising revenue from using misleading Internet domain
names. The FTC Officials provided me with various court
filings, affidavits, and related exhibits prepared by them in
their enforcement action against ZUCCARINI, together with a CD
which recorded the observations of an FTC investigator when s/he
accessed several Internet domain names registered by ZUCCARINI.
3
8. Consumer Complaints
As noted above, based on my conversations with FTC
Officials, I am aware that numerous individuals complained to
the FTC about the practices of JOHN ZUCCARINI, the defendant,
concerning his registration and use of domain names that were
misspellings of existing domain names, as well as about being
“mousetrapped” in Web sites controlled by ZUCCARINI. In
addition, I am aware that numerous legitimate Web site operators
received complaints from Internet users who accidentally
accessed Web sites controlled by JOHN ZUCCARINI which were
similar to their Web site; in some cases, the complainants
erroneously believed that the legitimate Web site was promoting
pornography. For example, I have reviewed an e-mail sent to
Yahoo! officials from a person (the “Parent”) whose 13 year-old
daughter inadvertently misspelled the domain name for a Web site
associated with an e-mail service offered by Yahoo!. In that email,
the Parent wrote:
My 13 y.o. daughter has a Yahoo e-mail account, and
using a tip from a friend attempted to get into her email
faster today by typing www.yahooe-mail.com. This
took her straight to a porn site – which had a 3 This CD was produced using a software known as “Camtasia
Studio” which I know to be computer software which can be used
to record on CD (for later replay and analysis) the images on a
computer screen as that computer accesses various Web pages of an Internet Web site. different address when it opened. I think at a minimum you have a trademark infringement being used to lure the unsuspecting to a porn site. We are upset
at how easily this error occurred. I hope you are able to do something about this.
Another e-mail which I reviewed, dated March 24, 1999, and sent
to Yahoo! officials from a user who worked in an Internetrelated
business stated:
I’m upset –- and I’m in the industry -– so I
understand if you make a mistake ---- my young
daughter wanted to find out about travel in Europe
this summer so I suggested YAHOOTRAVEL.4 She typed
YahooTravel.com and got PORNO !!!!!!!!!!!!!!!! I’m
very disappointed, I expect more from Yahoo.
Based on a report of UDRP proceedings brought by Yahoo! against ZUCCARINI which I have reviewed, I am aware that the two Web sites discussed above were registered to, and controlled by, ZUCCARINI.
9. UDRP Rulings Against ZUCCARINI
In addition to the consumer complaints set forth
above, I am aware that numerous Web site operators have brought UDRP actions against JOHN ZUCCARINI, the defendant,
individually, or under various aliases and d/b/a names used by
ZUCCARINI, in various arbitration proceedings. Specifically, I
am informed by FTC officials that approved dispute resolution
service providers (the “panels”) found against ZUCCARINI in 98
of approximately 100 proceedings. As a result, according to FTC
officials, ZUCCARINI was ordered to transfer the domain names at
issue in these actions to the legitimate domain name holder.
5
4 In the course of my investigation, I learned that Yahoo
does maintain a travel-related Web site, but that its domain
name is http://travel.yahoo.com.
5 E.g., Dow Jones & Co., Inc. v. Zuccarini, Case No.
D2000-0578 (WIPO Aug. 28, 2000) (“It is plain that Zuccarini
registered and has used the two domain names solely for the
purpose of trading on the global reputation of THE WALL STREET
JOURNAL, taking advantage of the tendency of Internet users to
misspell. . . and thus to profit from his own sales of
10. In the course of my investigation, I personally
reviewed approximately twenty of the UDRP arbitration decisions
referred to above. In these decisions, the panels found that
(1) ZUCCARINI had registered a domain name that was identical,
or confusingly similar, to a trademark or service mark in which
the complainant had legitimate rights; (2) ZUCCARINI had no
rights or legitimate interests in the domain name he had
registered; and (3) ZUCCARINI had registered, and was using, the
victim’s domain name in bad faith. In reviewing these
decisions, I learned that numerous of these actions involved
disputes concerning Web sites that relate to topics of interest
to minors.6 In addition, several decisions rendered against
ZUCCARINI (or one of the companies through which he does
business), which I reviewed specifically noted the recidivist
nature of ZUCCARINI’s conduct. Furthermore, I have reviewed two
UDRP actions in which the arbitration panel specifically noted
that ZUCCARINI’s activities promoted advertisements for
pornographic Web sites.7 In addition, as described more fully
advertising and from links to other websites. . . . It is
crystal clear that he registered thousands of domain names
because they are confusingly similar to others’ famous marks or
personal names – and thus are likely misspellings of those names
– in an effort to divert internet traffic to his sites.
Zuccarini has without question acted in bad faith in registering
and in using [these names].”)
6 For example, actions were brought against ZUCCARINI (or
entities controlled by him) by Disney Enterprises, Inc.,
Lucasfilm Ltd. (which owns a domain name associated with the
movie “Star Wars”), Paws, Inc. (which owns a domain name
associated with the cartoon character “Garfield”), Primedia,
Inc. (which owns a domain names associated with “Seventeen”
magazine), Time Warner Entertainment, Inc. (which owns a domain
names associated with “Harry Potter,” “Looney Tunes” and “Scooby
Doo”), and United Feature Syndicate (which owns a domain name
associated with the cartoon character “Dillbert”).
7 America Online, Inc. v. Zuccarini, Case No. D2000-1495
9WIPO Jan. 22, 2001) (“[o]ne of the disputed domain names . . .
directs Internet users to pornographic websites”); Yahoo!, Inc.
v. Cupcake Patrol, Case No. D2000-0928 (WIPO Sep. 29, 2000) (“On
at least one occasion, fully acknowledged by [Zuccarini], one of
below, I am aware that in at least two depositions in lawsuits
brought against ZUCCARINI, parties in those actions complained
to ZUCCARINI about the fact that his Web sites advertised for
pornographic Web sites.
11. Court Actions Against ZUCCARINI
In addition to the UDRP rulings referred to above, I
have reviewed various materials, including depositions and
testimony from court actions brought against JOHN ZUCCARINI, the defendant, relating to his practice of registering misleading
domain names. These actions include: Shields v. Zuccarini,
2000-CV-00494 (E.D.Pa.) (“Shields”); Maxim v. Zuccarini, 00 Civ.
2104 (WHP) (S.D.N.Y.) (“Maxim”); and Electronics Boutique
Holdings Corp. v. Zuccarini, 00 Civ. 4055 (E.D.Pa.)
(“Electronics Boutique”), and are discussed below.
In the Shields action, in a deposition conducted on
February 23, 2000, ZUCCARINI admitted, in substance and in part,
that:
I. he was in the business of
advertising for Web sites maintained by other
entities;
I. he conducts business under the
names Cupcake City, Cupcake Patrol, Cupcake
Movies, Cupcake Show, among others;
I. he selected the domain names he
registered because they were misspelled versions
of existing Web sites;
I. he engaged in this activity
without the permission or authorization of the
operators of the existing Web sites;8
[Zuccarini’s] Websites was routing ‘Yahoo!’ traffic to a porno
site.”)
8 I have also reviewed an e-mail, dated December 15, 1999,
and marked as Exhibit 11 in the Shields action, from ZUCCARINI,
to counsel for the plaintiff in which ZUCCARINI expresses his
views concerning the regulation of his registration of domain
names, stating:
I. he was paid between $.10 and $.25
every time a visitor to one of his Web sites
accessed the Web site of an entity he promoted on
his site;
I. he used Joker and Nominalia as
Internet Registrars for his domain names;
I. he had received cease and desist
letters from the owners of existing domain names
whose names he had registered misspelled versions
of;
I. he spent approximately $112,000
every two years to register approximately 1,600
domain names;
In addition, I have reviewed the transcript of a
preliminary injunction hearing conducted on March 21, 2000,
before the Honorable Stewart Dalzell, United States District
Judge for the Eastern District of Pennsylvania, in the Shields
action. In that hearing, ZUCCARINI in substance and in part:
I. admitted that he attracted traffic
to his Web sites by registering misspellings of
common domain names;
I. admitted that he chose domain
names to register by researching what the most
popular legitimate domain names were and then
choosing variations on those names;
I. admitted that between 98%-99% of
the 3,000 domain names he registered were
registered simply to generate Internet traffic;
You do not own the Internet!!!! People can say
and do whatever they want!!!! The Internet is
not a shopping mall!!!! . . . It is a road to
travel!!!!! It is not different that the city or
town we live in. We can do or say anything we
want as we walk through our city! As we can do
on the Internet!!!!
I. admitted that, without their
control or direction, persons accessing one of
his Web sites would receive pop-up screens from
that site repeatedly, and could not exit from
this process unless they knew a specific
technique for doing so;
I. admitted that many of his
approximately 3,000 Web sites had multiple
screens that opened, when they were accessed, and
that he was “trying to cut back” on the number of
screens that opened;
I. admitted that he registered the
domain names digmonmovie, digemonmovie,
playstasoin.com, paystastion.com, and
harrypottor.com;9
I. admitted that one reason he
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;
I. admitted that he had received
complaints from Yahoo! representatives about his
registration of misspellings of their domain
names.
In addition, I have reviewed two opinions of the
United States District Court for the Eastern District of
Pennsylvania in the Electronics Boutique case. In an October
30, 2000 ruling in that case,10 the Court specifically noted the
unwillingness of ZUCCARINI to comply with the directives of the
Court:
Mr. Zuccarini’s conduct is not easily deterred. .
9 I am aware that Digimon is a type of children’s cartoon
show produced by Disney; that Playstation is a video game system
popular with children, among others; and that Harry Potter is a
story book character popular with minors, among others.
10 Electronics Boutique Holdings Corp. v. Zuccarini, 56
U.S.P.Q.2d (BNA) 1705, C.A. 00-4055 (E.D.Pa. Oct 30, 2000).
. Strikingly, Mr. Zuccarini registered the domain
misspellings at issue in this matter after this
Court preliminarily enjoined him from using
misspellings of another individual’s mark. . . .
Mr. Zuccarini boldly thumbs his nose at the
rulings of this court and the laws of our
country.
(Emphasis supplied).
12. The FTC Enforcement Action Against ZUCCARINI
As a result of the continued conduct of JOHN
ZUCCARINI, the defendant, in registering misleading domain
names, according to FTC officials on or about September 25,
2001, the FTC sought, and obtained, a Temporary Restraining
Order (the “TRO”) in the United States District Court for the
Eastern District of Pennsylvania. According to FTC officials,
the TRO enjoined ZUCCARINI from the combined practice of
redirecting and obstructing consumers on the Internet or World
Wide Web; ordered him to dismantle certain Web sites central to
his scheme; and required ZUCCARINI to provide information and
documents to the FTC. Thereafter, according to FTC officials,
the FTC sought and, on October 19, 2001, obtained, a Preliminary
Injunction against ZUCCARINI. Among other things, the
Preliminary Injunction again enjoined ZUCCARINI from redirecting
and obstructing consumers on the Internet or World Wide Web.
Thereafter, according to FTC officials, the FTC sought, and on
April 9, 2002, obtained, a Permanent Injunction against
ZUCCARINI. Among other things, the Permanent Injunction banned
ZUCCARINI from redirecting and obstructing consumers; banned
ZUCCARINI from advertising for other Web sites for a fee; and
included a money judgement against ZUCCARINI of approximately
$1,897,166 as a result of his practice of registering misleading
domain names on the Internet to the detriment of consumers.
13. ZUCCARINI’s Knowledge Of The FTC Injunction
In the course of my investigation, I was informed by
FTC officials that, although JOHN ZUCCARINI, the defendant, did
not appear to contest the FTC allegations in the Preliminary or
Permanent Injunction actions, ZUCCARINI was aware of those
actions. Specifically, I learned through Cash X records
(described below) associated with ZUCCARINI, that ZUCCARINI had
accessed a computer database known as “Pacer” which lists court
filings in federal court, and which reflected the entry of the
injunctions against ZUCCARINI. On or about August 13, 2003, I
reviewed documents maintained by Pacer relative to an account
with Pacer by a subscriber named “John Zuccarini.” Among other
things those records indicate that on numerous occasions in 2003
–- most recently on May 18, 2003 -- ZUCCARINI ran a “docket
report” concerning the FTC action against him. In the course of
my investigation, I reviewed a copy of the Pacer docket report
for the FTC action against ZUCCARINI; among other things, that
report summarizes the terms of the Injunctions entered by the
Court against ZUCCARINI. In addition, I have reviewed excerpts
from depositions taken of ZUCCARINI’s mother and brother in the
FTC action; in both cases, the witnesses testified, in substance
and in part, that they had discussed the FTC action against
ZUCCARINI with him. Moreover, as discussed more fully below, I
have reviewed an e-mail sent to a lawyer for a domain name
holder that has sued ZUCCARINI. In that e-mail the sender
(identified only as “Shades”) admonishes the lawyer for his/her
supposed misunderstanding of the FTC’s final order in the case.
As described below, I have learned that the e-mail from “Shades”
was sent from an e-mail account controlled by ZUCCARINI.
Notwithstanding the terms of the injunctive relief obtained by
the FTC against ZUCCARINI, I am aware that ZUCCARINI continues
to use misleading domain names to promote advertisements for
pornography to minors.
14. News Articles Referring to ZUCCARINI’s Use of
Misleading Domain Names
In the course of my investigation, I reviewed several
on-line news articles concerning the registration of misleading
domain names by JOHN ZUCCARINI, the defendant. These included
an article (the “Article”) in a scholarly journal which (1)
listed domain names which had been registered by ZUCCARINI, and
(2) noted that many of his domain names directed viewers to
sexually explicit materials.
IV. Recent Investigation
15. Undercover Internet Investigation
On or about May 19 and May 20, 2003, using a computer
connected to the Internet which was located in the Southern
District of New York, I accessed 41 of the ZUCCARINI-controlled
domain names which are set forth in Exhibit A to this Complaint.11
The Web sites I accessed on these days relate to entertainment
figures, cartoon characters, and celebrities popular with minors
–- for example, “Bob The Builder,” “Britney Spears,” “Disney
Land,” and “Teletubbies.”12 When I accessed this first group of
ZUCCARINI-controlled sites on May 19th and 20th, I observed the
following:13 first, my computer was directed to a Web page which,
according to the domain name which appeared in my computer’s
browser, was known as “amaturevideos.nl.” Almost immediately
thereafter, my computer was directed to another Web site; this
Web site had the domain name “HANKY-PANKY-COLLEGE.com” (the
“Hanky-Panky Site”). The first screen of the Hanky-Panky Site
11 Exhibit A consists of a list of a total of 15 legitimate
domain names with a list of a total of 49 associated misspelled
domain names registered by JOHN ZUCCARINI, the defendant.
Exhibit A was assembled, in part, on my review of the ZUCCARINIcontrolled
Web sites listed in the Article; it is incorporated
by reference herein.
12 I am aware that Bob The Builder and Teletubbies are
entertainment characters on cable television which appeal to
young children.
13 I recorded my activity using the Camtasia Studio software
referred to above and have reviewed that recording in preparing
this Complaint.
consisted of a “Warning” page which, among other things, stated
“Warning: Adults Only . . . This Website contains sexuallyoriented
adult content which may include visual depictions of
nude adults, adults engaging in sexual acts, and other audio and
visual material of a sexually explicit nature.” This page
directed viewers who did not wish to see such materials, or who
were under the age to 18 to exit the site; viewers over 18
wishing to see such materials were directed to click on a
portion of the screen labeled “Enter Site.”14 After clicking on
the “Enter Site” portion of the screen, my computer accessed a
Web page of the Hanky-Panky Site titled “Dorm Sex Party.” This
Web page contained pictures of partially nude young people
engaging in sexual activity. Thereafter, when I clicked on the
“close” button of my computer screen in an attempted to exit
from the “Dorm Sex Party” screen, a new Web page opened on the
Hanky-Panky Site; this page offered access to free pornography.
Thereafter, when I attempted to close this Web page, a new Web
page on the Hanky Panky Site opened. This new Web page
displayed a collage (the “First Collage”) which was comprised of
several pictures, including (1) a picture of a woman performing
oral sex a man, and (2) a picture of vaginal sexual intercourse
between a woman and a man. When I attempted to close the Web
page containing the First Collage, I was taken to another Web
site. This Web site was titled “Extremeepenetration.net” on my
computer’s browser, and contained a second collage (the “Second
Collage”) which also contained pornographic images. My attempts
to close out this screen, and subsequent screens, led inevitably
to the opening of Web Pages displaying additional pornography.
The pornographic images I observed (including the First and
Second Collage) did not appear to be part of any larger
artistic, literary, political, or scientific work. Rather, the
pornographic images were advertisements for, among other things,
free access to pornography.
16. On or about August 6 and 7, 2003, I accessed the
remainder of the ZUCCARINI-controlled Web sites set forth in
Exhibit A to this Complaint. When I accessed this second group
of ZUCCARINI-controlled Web sites on those dates I observed the
14 Although viewers under 18 were directed not to enter the
site, the Web site did not provide any method to verify the age
of the person who accessed the site, and I was able to enter the
site simply by clicking on the “Enter Site” button.
following:15 first, my computer was directed to a Web page which
was again titled “amaturevideos.nl” in the domain name which
appeared in my computer’s browser. Almost immediately
thereafter, my computer was directed to the Hanky-Panky Site
described above, the first screen of which contained the
“Warning” page described above. After clicking on the “Enter
Site” portion of the screen, my computer accessed a Web site
listed in my computer’s browser as “access.rapid-pass.net . . .
hardcorevideos.” This first of page of this Web site contained
several color pictures16 of nude people engaging in sexual
activity, and offered “Hardcore Videos” of “Teens” and “Live
Girls.” When I attempted to close this Web page, a series of
additional Web pages opened on the Hanky-Panky Site. These Web
pages included, among other pornography, numerous high-quality
pictures of nude young people engaged in sexual activity,
including a picture of vaginal sexual intercourse between a
young man and a young woman. The pornographic images I observed
did not appear as part of any larger artistic, literary,
political, or scientific work.
17. In the course of my investigation, I accessed
publicly-available databases maintained by various Internet
Registrars which list certain information about the registrant
that is self-reported by the registrant at the time of
registration. This information includes the name of the
registrant who owns the specific domain name; the company with
which the owner is affiliated; and contact information for the
owner. When I accessed this information for the ZUCCARINIcontrolled
domain names set forth in Exhibit A, I learned that
(1) all of these domain names were registered and owned by “John
Zuccarini;” (2) ZUCCARINI used the Registrar known as Joker to
register the domain names; (3) the registration with Joker was
done electronically via the Internet; and (4) “Cupcake Patrol”
was listed as the company affiliated with “John Zuccarini” for
virtually every Web site registered by him.
18. In addition, in the course of my investigation, I
have reviewed records maintained by Cash X, Inc. (“Cash X”), a
15 I recorded my activity using the Camtasia Studio software
referred to above and have reviewed that recording in preparing
this Complaint.
16 It also included a moving image of a nude woman
masturbating with a dildo.
company located in Coral Gables, Florida, which I am aware
provides customers with credit card numbers to use for purchases
on the Internet and which bills its clients for those charges
against accounts established by its clients at Cash X. Records
maintained by Cash X indicate that a customer known as “John
Zuccarini” has used credit card numbers provided by Cash X to
pay bills to, among others, Pacer (which I know to be an
computer database of court filings), Joker (which I know to be
an Internet Registrar), and Earthlink (which I know to be an
Internet Service Provider).
19. ZUCCARINI at the Premises
As discussed in paragraph 13, above, I have reviewed
an e-mail (the “E-Mail”) sent on or about July 22, 2003, by a
person identified only as “Shades” to a lawyer representing a
domain name registrant who had previously sued JOHN ZUCCARINI,
the defendant. In the E-Mail, “Shades” complained, in
substance, that the lawyer had misunderstood the Final Permanent
Injunction entered in the FTC action against ZUCCARINI; that the
Registrar had improperly frozen ZUCCARINI’s Internet domain
names; and that an “illegal conspiracy” existed between the FTC
and the Registrar to deprive ZUCCARINI of the use of his domain
names. FTC officials informed me that they had spoken to the
lawyer who had received the E-Mail, and that the lawyer had
provided the FTC with the IP address associated with the
transmission of the E-Mail.17
20. Thereafter, I accessed publicly-available
databases and, in so doing, determined that Earthlink was the
ISP who owned the IP address associated with the E-Mail.
Records maintained by Earthlink indicate that, although the EMail
was purportedly sent from “Shades,” it was actually sent
from an account opened and maintained by “John Zuccarini,” and
that the account was active. Moreover, Earthlink records
17 Based on my training and experience, I am aware that
every computer connection on the Internet is associated with a
unique numeric identifier, known as an Internet Protocol (or
“IP” address). I am also aware that, in the case of Internet
transmissions through so-called “dial up” accounts, IP addresses
are assigned by Internet Service Providers (“ISPs”) to their
customers for particular Internet sessions, and that records are
kept of which IP addresses are assigned to which customers for
those connections.
revealed (1) the telephone number used to access the ZUCCARINI
account and to send the E-Mail (the “Telephone Number”), and (2)
that computer connections were made to the account from the
Telephone Number as recently as August 28, 2003. Based on my
review of publicly-available databases, I am aware that the
Telephone Number is a telephone number assigned to a Holiday Inn
located at 2711 South Ocean Drive, Hollywood, Florida (the
“Holiday Inn”). On or about August 18, 2003 and August 29,
2003, I spoke to a manager of the Holiday Inn, who informed me
(1) that “John Zuccarini” is currently registered as a guest in
Room #448 of the Holiday Inn; and (2) that “Zuccarini” has been
a registered guest in the Holiday Inn for approximately 10
months.
WHEREFORE, deponent prays that a warrant be issued for
the arrest of JOHN ZUCCARINI, the defendant, and that he be
imprisoned or bailed, as the case may be.
________________________________
ROBERT FRATERRIGO
Postal Inspector
U.S. Postal Inspection Service
Sworn to before me this
29th day of August, 2003
____________________________________
HONORABLE GABRIEL W. GORENSTEIN
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF NEW YORK
Exhibit 'A'
This is the full complaint against John Zuccarini. He faces up to four years in prison and a $250,000 fine if convicted of using misleading domains to redirect to porn sites
Assistant United States Attorney
Before: HONORABLE GABRIEL W. GORENSTEIN
United States Magistrate Judge
Southern District of New York
- - - - - - - - - - - - - - - - - - - x
UNITED STATES OF AMERICA,
- v.- :
JOHN ZUCCARINI, : 18 U.S.C. § 2252B(b)
Defendant.
COUNTY OF OFFENSE: NEW YORK
: SEALED COMPLAINT
- - - - - - - - - - - - - - - - - - - x
SOUTHERN DISTRICT OF NEW YORK, ss.:
ROBERT FRATERRIGO, being duly sworn, deposes and says
that he is a Postal Inspector of the United States Postal
Inspection Service ("USPIS"), and charges as follows:
COUNT ONE
(Misleading Domain Names On The Internet)
1. From at least on or about May 19, 2003, to at
least on or about August 7, 2003, in the Southern District of
New York and elsewhere, JOHN ZUCCARINI, the defendant,
unlawfully and knowingly used a misleading domain name on the
Internet to deceive a minor into viewing material that is
harmful to minors, to wit, JOHN ZUCCARINI, the defendant, as
reflected in Exhibit A to this Complaint, registered and used
misspellings and variations of the Internet Web site domain
names for Web sites primarily of interest to minors, in order to
deceive minors into viewing, among other things, photographic
depictions of nudity and sexual intercourse depicted on those
Web sites.
(Title 18, United States Code, Section 2252B(b).1)
1 Enacted Apr. 30, 2003, Pub. L. 108-21, Title V, § 521(a).
I. Introduction
2. I am a Postal Inspector with the United States
Postal Inspection Service (“USPIS”) and have been a Postal
Inspector since 1994. Since in or about 1999, I have
specialized in the investigations of crimes involving the
improper use of computers, computer systems, and the Internet.
Based upon my training as a Postal Inspector, and my experience
investigating computer and Internet crimes, I am familiar with
several of the means by which individuals use computers and the
Internet to commit various criminal offenses. Because this
Affidavit is being submitted for the limited purpose of
establishing probable cause, I have not included every detail of
every aspect of the investigation. Rather, I have set forth
facts in order to establish probable cause to arrest JOHN
ZUCCARINI, the defendant. In addition, the information
contained in this Affidavit is based upon conversations with
other government officials, including attorneys and
investigators employed by the Federal Trade Commission; my
review of various arbitration panel decisions and court
opinions; sworn deposition testimony from various civil actions
to which ZUCCARINI was a party; and my personal observations and
knowledge. Unless specifically indicated otherwise, all
conversations and statements described in this Affidavit are
related in substance and in part only.
II. The Internet and The Domain Name Registration System
3. Based on my training and experience, as well as
various publications that I have read, I know that the Internet
is an immense worldwide computer network used by millions of
individuals daily. In addition, I am aware that The World Wide
Web (the "Web") is a hypertext-based computer system that
facilitates the ability to find and access information on the
Internet through Web sites. Many businesses and entertainment
celebrities use Web sites to advertise, promote, and provide
information about themselves. Typically, a person who wishes to
view an Internet Web site installs a computer modem and computer software called a “Web Browser” on their computer, and types the Web site’s Uniform Resource Locator (colloquially referred to as the Web site’s “domain name”), in the address bar of their Web Browser. Based on my experience using the Internet, I am aware that a Web Site’s domain name will often be the name (or an abbreviation of the name) of the entity maintaining the Web Site preceded by “www.” and followed by a suffix indicating the type of entity maintaining the Web site –- for example, “.com” for businesses, “.org” for organizations, or “.gov” for governmental entities.
4. Based on materials I have read, I am aware that
persons and entities who wish to maintain a Web site on the
Internet must register the Web site’s domain name with one of
several companies, known as Internet Registrars. These Internet
Registrars are authorized to register Internet domain names by a
corporation known as the Internet Corporation for Assigned Names and Numbers (“ICANN”). Based on materials I have read, I am aware that Internet Registrars often charge a yearly (or biyearly) fee to the registrant for the exclusive use of a
particular domain name by that registrant. Examples of Internet
Registrars include Nominalia and Joker, two Internet Registrars
used by JOHN ZUCCARINI, the defendant.
5. Based on conversations I have had with Federal
Trade Commission officials, I am aware that ICANN has adopted a
Uniform Domain Name Resolution Policy (“UDRP”), enforced by
approved dispute resolution service providers accredited by
ICANN, to arbitrate disputes among persons concerning domain
names. In addition, based on conversations I have had with
Federal Trade Commission officials, as described more fully
below, I am aware that federal laws provide for certain civil
remedies where domain names are registered that may infringe
upon trademarks.
III. Initial Investigation
6. On or about November 25, 2002, I met with a
lawyer and two investigators assigned to the Bureau of Consumer Protection, Division of Marketing Practices, of the Federal Trade Commission (collectively, the “FTC Officials”). The FTC Officials informed me that they had recently brought a civil
enforcement action against JOHN ZUCCARINI, the defendant,
alleging that he had violated federal law by engaging in unfair
and deceptive practices. Specifically, the FTC Officials
informed me that ZUCCARINI had registered thousands of domain
names which consisted of slight variations (e.g., transposed
letters, misspellings, etc.) of popular domain names, and that
ZUCCARINI was using these domain names to generate advertising revenue from advertisers for pornographers, among others, who paid ZUCCARINI to direct Internet users to their Web sites. As the FTC Officials described it, whenever an Internet user typed a domain name registered by ZUCCARINI in the address bar of their browser, they were barraged with a series of
advertisements -- many of which were for pornographic web sites
–- and found it difficult, and in some cases impossible, to exit
from these Web sites without shutting down their computer.2 As
described more fully below, ZUCCARINI has engaged in the
practice of registering misleading domain names with the
knowledge that his activities cause confusion and deception
among Internet users, and with knowledge that his activities
violate the rights of holders of existing domain names.
7. According to the FTC Officials, the FTC had
received numerous complaints from consumers who, through
misspellings or typographical errors, had inadvertently accessed
Web sites controlled by JOHN ZUCCARINI, the defendant, and had
unwittingly found themselves barraged by advertisements for,
among other things, Web sites offering pornography. The FTC
Officials informed me that ZUCCARINI had (1) been engaged in the business of registering mispellings of common Internet domain names on a large scale for many years; (2) had been the subject of numerous legal actions brought by the registrants of Internet domain names associated with legitimate products and services;
and (3) had been permanently enjoined from this practice by the
United States District Court for the Eastern District of
Pennsylvania following a civil action by the FTC against
ZUCCARINI. The FTC Officials further informed me that
2 Based on articles and court opinions that I have read, I
am aware that this practice of preventing Internet users from
exiting a Web site or Web page is often referred to as
“mousetrapping.” Typically, when an Internet user is
“mousetrapped,” he or she finds that many common Internet
commands do not function properly. For example, rather than
returning the user to the previous Web page, hitting the “back”
button command will launch the opening of new Web pages.
Similarly, hitting the “close” button command may also open new
Web pages. Moreover, even when an Internet user does nothing,
new Web pages may open, barraging the user with images and data
they did not intend to receive. Often, the only way for the
user to exit this “cyber-maze” is for them to shut off their
computer, thereby potentially losing any unsaved data on their
computer. According to FTC officials, JOHN ZUCCARINI, the
defendant, combined mousetrapping techniques with other
programming tactics to bombard consumers with unwanted
advertisements for, among other things, pornography.
ZUCCARINI’s whereabouts were unknown; that ZUCCARINI had no
known legal address; and that ZUCCARINI had a history of failing
to respond to complaints and deposition notices and of evading
attempts at service of process by federal marshals. The FTC
Officials informed me that, according to testimony in prior
civil actions, by his own admission ZUCCARINI (1) was aware that
many of his domain names consisted of the misspellings of domain
names specifically associated with Web sites which appealed to
minors, and (2) earned between $800,000 and $1,000,000 per year
in advertising revenue from using misleading Internet domain
names. The FTC Officials provided me with various court
filings, affidavits, and related exhibits prepared by them in
their enforcement action against ZUCCARINI, together with a CD
which recorded the observations of an FTC investigator when s/he
accessed several Internet domain names registered by ZUCCARINI.
3
8. Consumer Complaints
As noted above, based on my conversations with FTC
Officials, I am aware that numerous individuals complained to
the FTC about the practices of JOHN ZUCCARINI, the defendant,
concerning his registration and use of domain names that were
misspellings of existing domain names, as well as about being
“mousetrapped” in Web sites controlled by ZUCCARINI. In
addition, I am aware that numerous legitimate Web site operators
received complaints from Internet users who accidentally
accessed Web sites controlled by JOHN ZUCCARINI which were
similar to their Web site; in some cases, the complainants
erroneously believed that the legitimate Web site was promoting
pornography. For example, I have reviewed an e-mail sent to
Yahoo! officials from a person (the “Parent”) whose 13 year-old
daughter inadvertently misspelled the domain name for a Web site
associated with an e-mail service offered by Yahoo!. In that email,
the Parent wrote:
My 13 y.o. daughter has a Yahoo e-mail account, and
using a tip from a friend attempted to get into her email
faster today by typing www.yahooe-mail.com. This
took her straight to a porn site – which had a 3 This CD was produced using a software known as “Camtasia
Studio” which I know to be computer software which can be used
to record on CD (for later replay and analysis) the images on a
computer screen as that computer accesses various Web pages of an Internet Web site. different address when it opened. I think at a minimum you have a trademark infringement being used to lure the unsuspecting to a porn site. We are upset
at how easily this error occurred. I hope you are able to do something about this.
Another e-mail which I reviewed, dated March 24, 1999, and sent
to Yahoo! officials from a user who worked in an Internetrelated
business stated:
I’m upset –- and I’m in the industry -– so I
understand if you make a mistake ---- my young
daughter wanted to find out about travel in Europe
this summer so I suggested YAHOOTRAVEL.4 She typed
YahooTravel.com and got PORNO !!!!!!!!!!!!!!!! I’m
very disappointed, I expect more from Yahoo.
Based on a report of UDRP proceedings brought by Yahoo! against ZUCCARINI which I have reviewed, I am aware that the two Web sites discussed above were registered to, and controlled by, ZUCCARINI.
9. UDRP Rulings Against ZUCCARINI
In addition to the consumer complaints set forth
above, I am aware that numerous Web site operators have brought UDRP actions against JOHN ZUCCARINI, the defendant,
individually, or under various aliases and d/b/a names used by
ZUCCARINI, in various arbitration proceedings. Specifically, I
am informed by FTC officials that approved dispute resolution
service providers (the “panels”) found against ZUCCARINI in 98
of approximately 100 proceedings. As a result, according to FTC
officials, ZUCCARINI was ordered to transfer the domain names at
issue in these actions to the legitimate domain name holder.
5
4 In the course of my investigation, I learned that Yahoo
does maintain a travel-related Web site, but that its domain
name is http://travel.yahoo.com.
5 E.g., Dow Jones & Co., Inc. v. Zuccarini, Case No.
D2000-0578 (WIPO Aug. 28, 2000) (“It is plain that Zuccarini
registered and has used the two domain names solely for the
purpose of trading on the global reputation of THE WALL STREET
JOURNAL, taking advantage of the tendency of Internet users to
misspell. . . and thus to profit from his own sales of
10. In the course of my investigation, I personally
reviewed approximately twenty of the UDRP arbitration decisions
referred to above. In these decisions, the panels found that
(1) ZUCCARINI had registered a domain name that was identical,
or confusingly similar, to a trademark or service mark in which
the complainant had legitimate rights; (2) ZUCCARINI had no
rights or legitimate interests in the domain name he had
registered; and (3) ZUCCARINI had registered, and was using, the
victim’s domain name in bad faith. In reviewing these
decisions, I learned that numerous of these actions involved
disputes concerning Web sites that relate to topics of interest
to minors.6 In addition, several decisions rendered against
ZUCCARINI (or one of the companies through which he does
business), which I reviewed specifically noted the recidivist
nature of ZUCCARINI’s conduct. Furthermore, I have reviewed two
UDRP actions in which the arbitration panel specifically noted
that ZUCCARINI’s activities promoted advertisements for
pornographic Web sites.7 In addition, as described more fully
advertising and from links to other websites. . . . It is
crystal clear that he registered thousands of domain names
because they are confusingly similar to others’ famous marks or
personal names – and thus are likely misspellings of those names
– in an effort to divert internet traffic to his sites.
Zuccarini has without question acted in bad faith in registering
and in using [these names].”)
6 For example, actions were brought against ZUCCARINI (or
entities controlled by him) by Disney Enterprises, Inc.,
Lucasfilm Ltd. (which owns a domain name associated with the
movie “Star Wars”), Paws, Inc. (which owns a domain name
associated with the cartoon character “Garfield”), Primedia,
Inc. (which owns a domain names associated with “Seventeen”
magazine), Time Warner Entertainment, Inc. (which owns a domain
names associated with “Harry Potter,” “Looney Tunes” and “Scooby
Doo”), and United Feature Syndicate (which owns a domain name
associated with the cartoon character “Dillbert”).
7 America Online, Inc. v. Zuccarini, Case No. D2000-1495
9WIPO Jan. 22, 2001) (“[o]ne of the disputed domain names . . .
directs Internet users to pornographic websites”); Yahoo!, Inc.
v. Cupcake Patrol, Case No. D2000-0928 (WIPO Sep. 29, 2000) (“On
at least one occasion, fully acknowledged by [Zuccarini], one of
below, I am aware that in at least two depositions in lawsuits
brought against ZUCCARINI, parties in those actions complained
to ZUCCARINI about the fact that his Web sites advertised for
pornographic Web sites.
11. Court Actions Against ZUCCARINI
In addition to the UDRP rulings referred to above, I
have reviewed various materials, including depositions and
testimony from court actions brought against JOHN ZUCCARINI, the defendant, relating to his practice of registering misleading
domain names. These actions include: Shields v. Zuccarini,
2000-CV-00494 (E.D.Pa.) (“Shields”); Maxim v. Zuccarini, 00 Civ.
2104 (WHP) (S.D.N.Y.) (“Maxim”); and Electronics Boutique
Holdings Corp. v. Zuccarini, 00 Civ. 4055 (E.D.Pa.)
(“Electronics Boutique”), and are discussed below.
In the Shields action, in a deposition conducted on
February 23, 2000, ZUCCARINI admitted, in substance and in part,
that:
I. he was in the business of
advertising for Web sites maintained by other
entities;
I. he conducts business under the
names Cupcake City, Cupcake Patrol, Cupcake
Movies, Cupcake Show, among others;
I. he selected the domain names he
registered because they were misspelled versions
of existing Web sites;
I. he engaged in this activity
without the permission or authorization of the
operators of the existing Web sites;8
[Zuccarini’s] Websites was routing ‘Yahoo!’ traffic to a porno
site.”)
8 I have also reviewed an e-mail, dated December 15, 1999,
and marked as Exhibit 11 in the Shields action, from ZUCCARINI,
to counsel for the plaintiff in which ZUCCARINI expresses his
views concerning the regulation of his registration of domain
names, stating:
I. he was paid between $.10 and $.25
every time a visitor to one of his Web sites
accessed the Web site of an entity he promoted on
his site;
I. he used Joker and Nominalia as
Internet Registrars for his domain names;
I. he had received cease and desist
letters from the owners of existing domain names
whose names he had registered misspelled versions
of;
I. he spent approximately $112,000
every two years to register approximately 1,600
domain names;
In addition, I have reviewed the transcript of a
preliminary injunction hearing conducted on March 21, 2000,
before the Honorable Stewart Dalzell, United States District
Judge for the Eastern District of Pennsylvania, in the Shields
action. In that hearing, ZUCCARINI in substance and in part:
I. admitted that he attracted traffic
to his Web sites by registering misspellings of
common domain names;
I. admitted that he chose domain
names to register by researching what the most
popular legitimate domain names were and then
choosing variations on those names;
I. admitted that between 98%-99% of
the 3,000 domain names he registered were
registered simply to generate Internet traffic;
You do not own the Internet!!!! People can say
and do whatever they want!!!! The Internet is
not a shopping mall!!!! . . . It is a road to
travel!!!!! It is not different that the city or
town we live in. We can do or say anything we
want as we walk through our city! As we can do
on the Internet!!!!
I. admitted that, without their
control or direction, persons accessing one of
his Web sites would receive pop-up screens from
that site repeatedly, and could not exit from
this process unless they knew a specific
technique for doing so;
I. admitted that many of his
approximately 3,000 Web sites had multiple
screens that opened, when they were accessed, and
that he was “trying to cut back” on the number of
screens that opened;
I. admitted that he registered the
domain names digmonmovie, digemonmovie,
playstasoin.com, paystastion.com, and
harrypottor.com;9
I. admitted that one reason he
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;
I. admitted that he had received
complaints from Yahoo! representatives about his
registration of misspellings of their domain
names.
In addition, I have reviewed two opinions of the
United States District Court for the Eastern District of
Pennsylvania in the Electronics Boutique case. In an October
30, 2000 ruling in that case,10 the Court specifically noted the
unwillingness of ZUCCARINI to comply with the directives of the
Court:
Mr. Zuccarini’s conduct is not easily deterred. .
9 I am aware that Digimon is a type of children’s cartoon
show produced by Disney; that Playstation is a video game system
popular with children, among others; and that Harry Potter is a
story book character popular with minors, among others.
10 Electronics Boutique Holdings Corp. v. Zuccarini, 56
U.S.P.Q.2d (BNA) 1705, C.A. 00-4055 (E.D.Pa. Oct 30, 2000).
. Strikingly, Mr. Zuccarini registered the domain
misspellings at issue in this matter after this
Court preliminarily enjoined him from using
misspellings of another individual’s mark. . . .
Mr. Zuccarini boldly thumbs his nose at the
rulings of this court and the laws of our
country.
(Emphasis supplied).
12. The FTC Enforcement Action Against ZUCCARINI
As a result of the continued conduct of JOHN
ZUCCARINI, the defendant, in registering misleading domain
names, according to FTC officials on or about September 25,
2001, the FTC sought, and obtained, a Temporary Restraining
Order (the “TRO”) in the United States District Court for the
Eastern District of Pennsylvania. According to FTC officials,
the TRO enjoined ZUCCARINI from the combined practice of
redirecting and obstructing consumers on the Internet or World
Wide Web; ordered him to dismantle certain Web sites central to
his scheme; and required ZUCCARINI to provide information and
documents to the FTC. Thereafter, according to FTC officials,
the FTC sought and, on October 19, 2001, obtained, a Preliminary
Injunction against ZUCCARINI. Among other things, the
Preliminary Injunction again enjoined ZUCCARINI from redirecting
and obstructing consumers on the Internet or World Wide Web.
Thereafter, according to FTC officials, the FTC sought, and on
April 9, 2002, obtained, a Permanent Injunction against
ZUCCARINI. Among other things, the Permanent Injunction banned
ZUCCARINI from redirecting and obstructing consumers; banned
ZUCCARINI from advertising for other Web sites for a fee; and
included a money judgement against ZUCCARINI of approximately
$1,897,166 as a result of his practice of registering misleading
domain names on the Internet to the detriment of consumers.
13. ZUCCARINI’s Knowledge Of The FTC Injunction
In the course of my investigation, I was informed by
FTC officials that, although JOHN ZUCCARINI, the defendant, did
not appear to contest the FTC allegations in the Preliminary or
Permanent Injunction actions, ZUCCARINI was aware of those
actions. Specifically, I learned through Cash X records
(described below) associated with ZUCCARINI, that ZUCCARINI had
accessed a computer database known as “Pacer” which lists court
filings in federal court, and which reflected the entry of the
injunctions against ZUCCARINI. On or about August 13, 2003, I
reviewed documents maintained by Pacer relative to an account
with Pacer by a subscriber named “John Zuccarini.” Among other
things those records indicate that on numerous occasions in 2003
–- most recently on May 18, 2003 -- ZUCCARINI ran a “docket
report” concerning the FTC action against him. In the course of
my investigation, I reviewed a copy of the Pacer docket report
for the FTC action against ZUCCARINI; among other things, that
report summarizes the terms of the Injunctions entered by the
Court against ZUCCARINI. In addition, I have reviewed excerpts
from depositions taken of ZUCCARINI’s mother and brother in the
FTC action; in both cases, the witnesses testified, in substance
and in part, that they had discussed the FTC action against
ZUCCARINI with him. Moreover, as discussed more fully below, I
have reviewed an e-mail sent to a lawyer for a domain name
holder that has sued ZUCCARINI. In that e-mail the sender
(identified only as “Shades”) admonishes the lawyer for his/her
supposed misunderstanding of the FTC’s final order in the case.
As described below, I have learned that the e-mail from “Shades”
was sent from an e-mail account controlled by ZUCCARINI.
Notwithstanding the terms of the injunctive relief obtained by
the FTC against ZUCCARINI, I am aware that ZUCCARINI continues
to use misleading domain names to promote advertisements for
pornography to minors.
14. News Articles Referring to ZUCCARINI’s Use of
Misleading Domain Names
In the course of my investigation, I reviewed several
on-line news articles concerning the registration of misleading
domain names by JOHN ZUCCARINI, the defendant. These included
an article (the “Article”) in a scholarly journal which (1)
listed domain names which had been registered by ZUCCARINI, and
(2) noted that many of his domain names directed viewers to
sexually explicit materials.
IV. Recent Investigation
15. Undercover Internet Investigation
On or about May 19 and May 20, 2003, using a computer
connected to the Internet which was located in the Southern
District of New York, I accessed 41 of the ZUCCARINI-controlled
domain names which are set forth in Exhibit A to this Complaint.11
The Web sites I accessed on these days relate to entertainment
figures, cartoon characters, and celebrities popular with minors
–- for example, “Bob The Builder,” “Britney Spears,” “Disney
Land,” and “Teletubbies.”12 When I accessed this first group of
ZUCCARINI-controlled sites on May 19th and 20th, I observed the
following:13 first, my computer was directed to a Web page which,
according to the domain name which appeared in my computer’s
browser, was known as “amaturevideos.nl.” Almost immediately
thereafter, my computer was directed to another Web site; this
Web site had the domain name “HANKY-PANKY-COLLEGE.com” (the
“Hanky-Panky Site”). The first screen of the Hanky-Panky Site
11 Exhibit A consists of a list of a total of 15 legitimate
domain names with a list of a total of 49 associated misspelled
domain names registered by JOHN ZUCCARINI, the defendant.
Exhibit A was assembled, in part, on my review of the ZUCCARINIcontrolled
Web sites listed in the Article; it is incorporated
by reference herein.
12 I am aware that Bob The Builder and Teletubbies are
entertainment characters on cable television which appeal to
young children.
13 I recorded my activity using the Camtasia Studio software
referred to above and have reviewed that recording in preparing
this Complaint.
consisted of a “Warning” page which, among other things, stated
“Warning: Adults Only . . . This Website contains sexuallyoriented
adult content which may include visual depictions of
nude adults, adults engaging in sexual acts, and other audio and
visual material of a sexually explicit nature.” This page
directed viewers who did not wish to see such materials, or who
were under the age to 18 to exit the site; viewers over 18
wishing to see such materials were directed to click on a
portion of the screen labeled “Enter Site.”14 After clicking on
the “Enter Site” portion of the screen, my computer accessed a
Web page of the Hanky-Panky Site titled “Dorm Sex Party.” This
Web page contained pictures of partially nude young people
engaging in sexual activity. Thereafter, when I clicked on the
“close” button of my computer screen in an attempted to exit
from the “Dorm Sex Party” screen, a new Web page opened on the
Hanky-Panky Site; this page offered access to free pornography.
Thereafter, when I attempted to close this Web page, a new Web
page on the Hanky Panky Site opened. This new Web page
displayed a collage (the “First Collage”) which was comprised of
several pictures, including (1) a picture of a woman performing
oral sex a man, and (2) a picture of vaginal sexual intercourse
between a woman and a man. When I attempted to close the Web
page containing the First Collage, I was taken to another Web
site. This Web site was titled “Extremeepenetration.net” on my
computer’s browser, and contained a second collage (the “Second
Collage”) which also contained pornographic images. My attempts
to close out this screen, and subsequent screens, led inevitably
to the opening of Web Pages displaying additional pornography.
The pornographic images I observed (including the First and
Second Collage) did not appear to be part of any larger
artistic, literary, political, or scientific work. Rather, the
pornographic images were advertisements for, among other things,
free access to pornography.
16. On or about August 6 and 7, 2003, I accessed the
remainder of the ZUCCARINI-controlled Web sites set forth in
Exhibit A to this Complaint. When I accessed this second group
of ZUCCARINI-controlled Web sites on those dates I observed the
14 Although viewers under 18 were directed not to enter the
site, the Web site did not provide any method to verify the age
of the person who accessed the site, and I was able to enter the
site simply by clicking on the “Enter Site” button.
following:15 first, my computer was directed to a Web page which
was again titled “amaturevideos.nl” in the domain name which
appeared in my computer’s browser. Almost immediately
thereafter, my computer was directed to the Hanky-Panky Site
described above, the first screen of which contained the
“Warning” page described above. After clicking on the “Enter
Site” portion of the screen, my computer accessed a Web site
listed in my computer’s browser as “access.rapid-pass.net . . .
hardcorevideos.” This first of page of this Web site contained
several color pictures16 of nude people engaging in sexual
activity, and offered “Hardcore Videos” of “Teens” and “Live
Girls.” When I attempted to close this Web page, a series of
additional Web pages opened on the Hanky-Panky Site. These Web
pages included, among other pornography, numerous high-quality
pictures of nude young people engaged in sexual activity,
including a picture of vaginal sexual intercourse between a
young man and a young woman. The pornographic images I observed
did not appear as part of any larger artistic, literary,
political, or scientific work.
17. In the course of my investigation, I accessed
publicly-available databases maintained by various Internet
Registrars which list certain information about the registrant
that is self-reported by the registrant at the time of
registration. This information includes the name of the
registrant who owns the specific domain name; the company with
which the owner is affiliated; and contact information for the
owner. When I accessed this information for the ZUCCARINIcontrolled
domain names set forth in Exhibit A, I learned that
(1) all of these domain names were registered and owned by “John
Zuccarini;” (2) ZUCCARINI used the Registrar known as Joker to
register the domain names; (3) the registration with Joker was
done electronically via the Internet; and (4) “Cupcake Patrol”
was listed as the company affiliated with “John Zuccarini” for
virtually every Web site registered by him.
18. In addition, in the course of my investigation, I
have reviewed records maintained by Cash X, Inc. (“Cash X”), a
15 I recorded my activity using the Camtasia Studio software
referred to above and have reviewed that recording in preparing
this Complaint.
16 It also included a moving image of a nude woman
masturbating with a dildo.
company located in Coral Gables, Florida, which I am aware
provides customers with credit card numbers to use for purchases
on the Internet and which bills its clients for those charges
against accounts established by its clients at Cash X. Records
maintained by Cash X indicate that a customer known as “John
Zuccarini” has used credit card numbers provided by Cash X to
pay bills to, among others, Pacer (which I know to be an
computer database of court filings), Joker (which I know to be
an Internet Registrar), and Earthlink (which I know to be an
Internet Service Provider).
19. ZUCCARINI at the Premises
As discussed in paragraph 13, above, I have reviewed
an e-mail (the “E-Mail”) sent on or about July 22, 2003, by a
person identified only as “Shades” to a lawyer representing a
domain name registrant who had previously sued JOHN ZUCCARINI,
the defendant. In the E-Mail, “Shades” complained, in
substance, that the lawyer had misunderstood the Final Permanent
Injunction entered in the FTC action against ZUCCARINI; that the
Registrar had improperly frozen ZUCCARINI’s Internet domain
names; and that an “illegal conspiracy” existed between the FTC
and the Registrar to deprive ZUCCARINI of the use of his domain
names. FTC officials informed me that they had spoken to the
lawyer who had received the E-Mail, and that the lawyer had
provided the FTC with the IP address associated with the
transmission of the E-Mail.17
20. Thereafter, I accessed publicly-available
databases and, in so doing, determined that Earthlink was the
ISP who owned the IP address associated with the E-Mail.
Records maintained by Earthlink indicate that, although the EMail
was purportedly sent from “Shades,” it was actually sent
from an account opened and maintained by “John Zuccarini,” and
that the account was active. Moreover, Earthlink records
17 Based on my training and experience, I am aware that
every computer connection on the Internet is associated with a
unique numeric identifier, known as an Internet Protocol (or
“IP” address). I am also aware that, in the case of Internet
transmissions through so-called “dial up” accounts, IP addresses
are assigned by Internet Service Providers (“ISPs”) to their
customers for particular Internet sessions, and that records are
kept of which IP addresses are assigned to which customers for
those connections.
revealed (1) the telephone number used to access the ZUCCARINI
account and to send the E-Mail (the “Telephone Number”), and (2)
that computer connections were made to the account from the
Telephone Number as recently as August 28, 2003. Based on my
review of publicly-available databases, I am aware that the
Telephone Number is a telephone number assigned to a Holiday Inn
located at 2711 South Ocean Drive, Hollywood, Florida (the
“Holiday Inn”). On or about August 18, 2003 and August 29,
2003, I spoke to a manager of the Holiday Inn, who informed me
(1) that “John Zuccarini” is currently registered as a guest in
Room #448 of the Holiday Inn; and (2) that “Zuccarini” has been
a registered guest in the Holiday Inn for approximately 10
months.
WHEREFORE, deponent prays that a warrant be issued for
the arrest of JOHN ZUCCARINI, the defendant, and that he be
imprisoned or bailed, as the case may be.
________________________________
ROBERT FRATERRIGO
Postal Inspector
U.S. Postal Inspection Service
Sworn to before me this
29th day of August, 2003
____________________________________
HONORABLE GABRIEL W. GORENSTEIN
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF NEW YORK
Exhibit 'A'
This is the full complaint against John Zuccarini. He faces up to four years in prison and a $250,000 fine if convicted of using misleading domains to redirect to porn sites
