Island Online, Inc. v. Network Solutions, Inc., No. CIV. 99-CV-6848 (DGT).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtTrager
Citation119 F.Supp.2d 289
Docket NumberNo. CIV. 99-CV-6848 (DGT).
Decision Date06 November 2000
PartiesISLAND ONLINE, INC., Plaintiff, v. NETWORK SOLUTIONS, INC. and the National Science Foundation, Defendants.
119 F.Supp.2d 289
ISLAND ONLINE, INC., Plaintiff,
v.
NETWORK SOLUTIONS, INC. and the National Science Foundation, Defendants.
No. CIV. 99-CV-6848 (DGT).
United States District Court, E.D. New York.
November 6, 2000.

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COPYRIGHT MATERIAL OMITTED

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Daniel C. Marotta, Dowd & Morolta, New York, N.Y., for Island Online, Inc.

Shari Claire Lewis, Rivkin, Radler, & Kremer, Uniondale, N.Y., for Network Solutions, Inc.

Theodore C. Hirt, United States Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, for National Science Foundation.

MEMORANDUM AND ORDER

TRAGER, District Judge.


In October of 1999, plaintiff Island Online ("IOL") brought this suit, styled as a § 1983 action, against defendants Network Solutions, Inc. ("NSI") and the National Science Foundation ("the NSF") for damages, declaratory judgment and injunctive relief arising out of NSI's refusal to register three Internet domain names desired by IOL. IOL contends that NSI's policy of filtering out certain obscene domain names, coupled with NSI's affiliation with the NSF, a government entity, constitutes a violation of IOL's First and Fifth Amendment rights under the United States Constitution and IOL's rights to freedom of speech and due process of law guaranteed by Article 1, § 8 and Article 1, § 6 of the New York State Constitution respectively. NSI now moves for dismissal of IOL's complaint and/or summary judgment, and the NSF has moved for dismissal, or, in the alternative, for a more definite statement.1 Both defendants argue that, even accepting all of IOL's allegations as fact, IOL has no standing to bring suit, and NSI is not a state actor and, consequently, cannot be liable for alleged violations of IOL's constitutional rights. IOL opposes summary judgment and has made a cross-motion to amend its complaint to assert a cause of action under

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Bivens and to add individual employees of NSI and the NSF as defendants. NSI and the NSF oppose the motion to amend, maintaining that any amendment would be futile.

Background
(1)
The Internet and the Cooperative Agreement

The "Internet" is a worldwide system of computer networks and individual computers that are interconnected by communications facilities. See Decl. George Strawn ¶ 4 [hereinafter "Strawn Decl."]. The antecedents of the Internet were systems for two relatively small groups of research-oriented governmental, academic and corporate entities—ARPANET and NSFNET. See id. ¶ 5. ARPANET received its principal support from the Department of Defense and related agencies, while NSFNET's support came from numerous sources, including the NSF and other federal agencies, academic institutions and corporate sponsors. See id.

Under a system first implemented on the ARPANET, each entity connected to the Internet is assigned one or more unique numeric "addresses" which permit other connected entities to send it communications. See id. ¶ 11. These addresses, known as "IP addresses," are similar in function to telephone numbers and are written as a series of no more than 12 digits separated by periods (e.g."204.146.46.8"). See id. During the early days of the Internet, IP addresses were maintained and assigned by one individual, Dr. Jon Postel at the University of Southern California's Information Sciences Institute, who performed this task as part of the ARPANET experiment. See id. ¶ 12. Later, Dr. Postel's project came to be known as the Internet Assigned Numbers Authority ("IANA"). See id. The IANA oversaw the allocation of IP addresses until November 1998, when the Internet Corporation for Assigned Names and Numbers ("ICANN"), a private, nonprofit corporation, was formed and designated as the governing body responsible for IP address space allocation, as well as other Internet-maintenance responsibilities. See id.

Because IP addresses could be difficult to remember, network users informally assigned alphabetic names to their own computers, and these names were tracked and associated with their corresponding IP numbers in a file maintained by Dr. Postel and downloaded to the host computers at all Internet sites. See id. ¶ 13. In 1987, this practice evolved into what is known as the Domain Name System ("DNS") for associating names with IP numbers on the Internet. See id. ¶ 14. The DNS makes it possible for users to address messages to other users and to Internet-attached computers by name rather than number. See id. ¶ 15.

The sequences of alphanumeric characters that make up domain names are segmented by periods (e.g., "ibm.com" or "nsf. gov"). See id. ¶ 16. The segments are hierarchically related to one another. See id. The far right segment is called the top level domain ("TLD"), the next is called the second level domain ("SLD"), and so on. See id. In the above examples, ".com" and ".gov" are TLDs; "ibm" and "nsf" are SLDs. See id. Each domain name must be unique; it is impossible for more than one entity to register for any given domain name. See id. ¶ 21.

Whereas TLDs are generic, SLD names are typically expressive of the content and interfaces that one would expect to find on the particular site designated by the domain name. See Pl. Island Online, Inc.'s Opp. Mem.2 at 3 [hereinafter Pl.'s Opp. Mem.]. They are marketing tools designed to appeal to the public at large and a key

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marketing strategy for many new businesses. See id. Many businesses now even trademark their "dot.com" names and use those names to express a message to consumers and to the public. See id. The TLD ".com" in particular is intended for use by private, commercial businesses such as IOL. See id. at 2.

Since the need for DNS name resolution (conversion of domain names into IP numbers) is constant, it is necessary to maintain and update the DNS database continuously. See Strawn Decl. ¶ 22. The new domain name information is obtained and disseminated through a process called DNS registration. See id. An Internet user who wishes to register a domain name first obtains an IP address to be associated with the desired domain name from an Internet Service Provider or from an IP address registry. See id. If the desired domain name has not already been registered in the TLD of the user's choice, it can generally be registered on a first-come, first-served basis. See id.

The TLD zone files are replicated at 13 different locations (including NSI) known as the "root server system," but the master root server is maintained by NSI in Herndon, Virginia, pursuant to the Cooperative Agreement detailed below. See id. ¶¶ 24-25. The other 12 root servers obtain the daily updated domain name information by copying from the master root server. See id. ¶ 25. These other root server operators have no contractual or other legal relationship with the master root server. See id. Rather, they have a purely voluntary association with it because of their common interests in a universally resolvable DNS. See id.

On January 1, 1993, NSI and the NSF, an agency of the United States Government, entered into Cooperative Agreement No. NCR-9218742 (the "Cooperative Agreement" or "Agreement"). See id. ¶ 26. Pursuant to the terms of that Agreement, NSI undertook the task of registering SLD names within the generic TLDs of ".com," ".org," ".net," ".edu" and ".gov." See id. ¶ 27. The NSF's role was not to regulate the administration of the Internet but to provide support for domain name registration. See id. ¶ 28. The NSF engaged in general oversight of NSI's performance of its responsibilities under the Agreement but not NSI's day-to-day managerial activities. See id. Specifically, the Agreement includes the following provisions:

[NSI] has primary responsibility for ensuring the quality, timeliness and effective management of the registration services provided under this [A]greement. To the extent that NSF does not reserve specific responsibility for accomplishing the purposes of this Agreement, by either special condition or general condition of this Agreement, all such responsibilities remain with [NSI]....

NSF has responsibility for registration services support, support planning, oversight, monitoring, and evaluation. NSF will make approvals required under the General Conditions and, where necessary and appropriate, NSF will contact and negotiate with Federal agencies and other national and International [sic] members of the Internet community to further the efforts of this project.

App. Exs. Supp. Mot. Dismiss by Def. Network Solutions, Inc., Ex. G at 7. In September, 1998, responsibility for the Agreement was transferred to the National Telecommunications & Information Administration ("NTIA") of the Department of Commerce. See Strawn Decl. ¶ 30. NTIA is now the federal agency that oversees the administration of the Cooperative Agreement, which was due to expire on September 30, 2000. See id. ¶¶ 29-30.

In November 1998, in response to President Clinton's initiative to increase competition in and promote international participation in the DNS, NTIA entered into a Memorandum of Understanding with ICANN to collaborate on the design, development and implementation of the mechanisms that need to be in place to

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privatize management of the DNS. See id. ¶ 31. Under the Memorandum of Understanding, ICANN also undertook the responsibility of working with the Department of Commerce to establish the rules for and accrediting of competing registrars to use NSI's Shared Registration System ("SRS") to register domain names in ".com," ".net," and ".org" domains. See id. ¶ 32. Through the SRS, there is no limit on the number of registrars that may register domain names. See id.

On April 21, 1999, ICANN introduced this competition by naming five entities which would compete with NSI in the registration of domain names. See id. ¶ 33. As of March 16, 2000, NSI was already only one of approximately 35 competitive SLD name registrars (soon to be over 100). See Decl. David M. Graves Supp. Mot. by...

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8 practice notes
  • Ruhlmann v. Ulster County Dept. of Social Services, No. 99-CV-0213.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • November 26, 2002
    ...similar principles of law when applying different tests to their respective facts. See Island Online, Inc. v. Network Solutions, Inc., 119 F.Supp.2d 289, 305 (E.D.N.Y.2000) ("[t]he four tests are not absolutely orthogonal to one another, but among them, they thoroughly cover the jurispruden......
  • Cacchillo v. Insmed Inc., Civil Action No. 1:10–CV–01199 (TJM/RFT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • June 29, 2011
    ...determining whether action by a private entity was taken “under color of federal law.” Island Online, Inc. v. Network Solutions, Inc., 119 F.Supp.2d 289, 304 (E.D.N.Y., 2000). To demonstrate that Defendant's actions could be attributed to the state or [833 F.Supp.2d 234]federal government, ......
  • Omnipoint Communications Inc. v. Comi, No. 1:99-CV-1952 (RFT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • November 20, 2002
    ...test; 3) the symbiotic relationship test; and 4) the joint activity test. See Island Online, Inc. v. Network Solutions, Inc., 119 F.Supp.2d 289, 304-07 (E.D.N.Y.2000). Omnipoint contends that tests one through three, but not four, are applicable here. Thus, the joint activity test is not Fi......
  • Shapiro v. Cmty. First Servs., Inc., 11-CV-4061 (KAM)(LB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 27, 2014
    ...whether action was taken 'under color of federal law' for Bivens purposes"); Island Online, Inc. v. Network Solutions, Inc., 119 F. Supp. 2d 289, 304 (E.D.N.Y. 2000). Notably, however, even for purposes of claims brought pursuant to § 1983, "[f]ederal courts are split on the question whethe......
  • Request a trial to view additional results
8 cases
  • Ruhlmann v. Ulster County Dept. of Social Services, No. 99-CV-0213.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • November 26, 2002
    ...similar principles of law when applying different tests to their respective facts. See Island Online, Inc. v. Network Solutions, Inc., 119 F.Supp.2d 289, 305 (E.D.N.Y.2000) ("[t]he four tests are not absolutely orthogonal to one another, but among them, they thoroughly cover the jurispruden......
  • Cacchillo v. Insmed Inc., Civil Action No. 1:10–CV–01199 (TJM/RFT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • June 29, 2011
    ...determining whether action by a private entity was taken “under color of federal law.” Island Online, Inc. v. Network Solutions, Inc., 119 F.Supp.2d 289, 304 (E.D.N.Y., 2000). To demonstrate that Defendant's actions could be attributed to the state or [833 F.Supp.2d 234]federal government, ......
  • Omnipoint Communications Inc. v. Comi, No. 1:99-CV-1952 (RFT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • November 20, 2002
    ...test; 3) the symbiotic relationship test; and 4) the joint activity test. See Island Online, Inc. v. Network Solutions, Inc., 119 F.Supp.2d 289, 304-07 (E.D.N.Y.2000). Omnipoint contends that tests one through three, but not four, are applicable here. Thus, the joint activity test is not Fi......
  • Shapiro v. Cmty. First Servs., Inc., 11-CV-4061 (KAM)(LB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 27, 2014
    ...whether action was taken 'under color of federal law' for Bivens purposes"); Island Online, Inc. v. Network Solutions, Inc., 119 F. Supp. 2d 289, 304 (E.D.N.Y. 2000). Notably, however, even for purposes of claims brought pursuant to § 1983, "[f]ederal courts are split on the question whethe......
  • Request a trial to view additional results

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