Federal judge tosses out lawsuit over denial of domain names

Monday, November 13, 2000

A federal judge has dismissed the lawsuit of a New York business which
alleges its First Amendment rights were violated when a company that registers
Internet domain names denied its applications.

Island Online Corp., which provides adult content on the Web, sued in
October 1999, after Network Solutions, Inc., refused to register three domain
names, “f—me.com,” “f—you.com” and “c—suckers.com.”

Network Solutions notified Island Online that it was rejecting the
applications because they violated the company’s 1996 anti-obscenity policy. In
April 1999, Network Solutions notified Island Online of the denial by e-mail:

“Network Solutions has a right founded in the First Amendment to the
Constitution to refuse to register, and thereby publish, on the Internet
registry of domain names words that it deems to be inappropriate.”

Island Online then filed its lawsuit in federal court, alleging a
violation of its First Amendment rights. Network Solutions filed a motion to
dismiss the suit, claiming that there was no governmental involvement and no
state action which could trigger constitutional protections.

Island Online pointed out that in 1993, Network Solutions had entered
a “cooperative agreement” with the National Science Foundation, a federal
agency, under which NSI began the task of registering Internet domain names. In
legal papers, Island Online alleged: “NSI is a state actor acting under color
of state law because NSI performs a function that is a traditional role of the
State — registration of business names.”

On Nov. 6, U.S. District Judge David Trager sided with NSI and found
no state action.

Trager wrote that “registration of Internet domain names, the focal
point of this case, has never been a public function.”

The judge also determined that there was not a sufficiently “close
nexus” between NSI and the government to warrant a finding of state action.
“Beyond knowing of its involvement, NSF had absolutely no involvement with
NSI’s obscenity policy.”

The judge concluded: “NSI’s obscenity policy is purely private conduct
in which the NSF and the relationship between the two entities play no

Daniel Marotta, attorney for Island Online, said there is state action
sufficient to trigger First Amendment protection. “For example, the government
dictates whether NSI can expand top-level domain names, and the government
mandates that NSI register all [domain names] submitted by other
registrars,” he said. “Although the government is now trying to
relinquish its control over domain name registration, at the time we filed our
application the registration process was being closely held by one company
(NSI) under the supervision of the government,” Marotta said. “At the time we
filed for our domain names, NSI was the sole registrar of domain names.

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