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An Internet domain name registrar could not be sued for civil rights violations for denying a company domain names that included obscene words, a New York federal judge has ruled. The plaintiff wanted to register several domain names that included six of the seven well-known “dirty words” prohibited for broadcast by the Federal Communications Commission. But U.S. District Judge David G. Trager said that now that there are more than 30 domain name registrars, the defendant, Network Solutions Inc., could not be viewed as participating in governmental action to deprive the plaintiff of fundamental rights. In Island Online Inc. v. Network Solutions Inc., 99-CV-6848 (DGT), Trager granted summary judgment to Network Solutions, as well as the National Science Foundation, the federal government agency that in 1993 entered into an agreement with Network Solutions to give the company the responsibility for managing domain name registration. The plaintiff, Island Online Inc., argued that Network Solutions’ practice of refusing to register obscene domain names deprived it of its right to free speech and due process of law under the U.S. and New York State Constitutions. Trager agreed that while Network Solutions does refuse to register domain names considered obscene, plaintiffs now have alternative registrars who may allow the use of such names. Since 1993, the NSF has been replaced by the National Telecommunications and Information Administration (NTIA), which is part of the U.S. Department of Commerce, in oversight of Network Solutions’ registration responsibilities. In 1999, the NTIA opened the registration process to competition, and Network Solutions became one of 35 domain name registrars, the court observed. Trager rejected plaintiff’s arguments that Network Solutions’ registration activities were undertaken under color of federal law, in that it was operating under an agreement with the National Science Foundation, and that the Internet was public infrastructure created by the government. “Although the U.S. Department of Defense was indeed an instrumental agent in the Internet’s origins, the Internet is [not], by [any] stretch of the imagination, a traditional and exclusive public function,” the judge wrote. NEVER A PUBLIC FUNCTION The court further reasoned that the registration of Internet domain names has never been a public function, and that the U.S. Congress chose not to require a federal agency to undertake that function. Island Online wanted to register three “dot-com” domain names that incorporated words commonly considered obscene: “f—me.com;” f—you.com” and “c—s—-.com.” It further alleged that it lost the right to those names because competitors were able to register the names with different registrars while it was being denied access to registration by Network Solutions. Plaintiffs said the names have commercial value that was lost because of Network Solutions’ policy. But Trager said that entities had presented domain name applications for the same names before Island Online. If Island Online were allowed to sue Network Solutions, then the earlier frustrated registrants could also seek damages. “NSI would potentially have to pay a theoretically endless series of judgments to every plaintiff to emerge out of the woodwork for an injury that only a single party could have actually sustained,” Trager said. Daniel C. Marotta, of Dowd & Marotta in Manhattan, represented Island Online. Shari Claire Lewis, of Rivkin, Radler & Kremer in Uniondale, N.Y., represented Network Solutions. Theodore C. Hirt, of the U.S. Department of Justice, Civil Division Federal Programs Branch, represented the National Science Foundation.

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