Peterson v. Nat. Telecomms. and Info. Admin.

• Decision Date: 27 February 2007
• Docket Number: No. 06-1548.,No. 06-1216.,06-1216.,06-1548.
• Citation: 478 F.3d 626
• Parties: Robert PETERSON, Plaintiff-Appellant, v. NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION; United States Department of Commerce; Michael D. Gallagher, in his capacity as Assistant Secretary of Commerce for Communications and Information; Carlos E. Gutierrez, in his capacity as Secretary of Commerce; Neustar, Incorporated, a Delaware Corporation, Defendants-Appellees. Electronic Privacy Information Center, Amicus Supporting Appellant. Robert Peterson, Plaintiff-Appellant, v. National Telecommunications and Information Administration; United States Department of Commerce; Michael D. Gallagher, in his capacity as Assistant Secretary of Commerce for Communications and Information; Carlos E. Gutierrez, in his capacity as Secretary of Commerce; Neustar, Incorporated, a Delaware Corporation, Defendants-Appellees. Electronic Privacy Information Center, Amicus Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

478 F.3d 626

Robert PETERSON, Plaintiff-Appellant, v. NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION; United States Department of Commerce; Michael D. Gallagher, in his capacity as Assistant Secretary of Commerce for Communications and Information; Carlos E. Gutierrez, in his capacity as Secretary of Commerce; Neustar, Incorporated, a Delaware Corporation, Defendants-Appellees.

Electronic Privacy Information Center, Amicus Supporting Appellant.

Robert Peterson, Plaintiff-Appellant, v. National Telecommunications and Information Administration; United States Department of Commerce; Michael D. Gallagher, in his capacity as Assistant Secretary of Commerce for Communications and Information; Carlos E. Gutierrez, in his capacity as Secretary of Commerce; Neustar, Incorporated, a Delaware Corporation, Defendants-Appellees.

Electronic Privacy Information Center, Amicus Supporting Appellant.

No. 06-1216.

No. 06-1548.

United States Court of Appeals, Fourth Circuit.

Argued November 28, 2006.

Decided February 27, 2007.

ARGUED: James Edward Houpt, Orrick, Herrington & Sutcliffe, L.L.P., Sacramento, California, for Appellant. Charles Wylie Scarborough, United States Department of Justice, Civil Division, Appellate Section, Washington, D.C., for Appellees. ON BRIEF: James Deacon, Orrick, Herrington & Sutcliffe, L.L.P., Washington, D.C., for Appellant. Peter J. Riebling, Roger P. Furey, Katten, Muchin, Rosenman, L.L.P., Washington, D.C., for Appellee Neustar, Incorporated, a Delaware Corporation; Peter D. Keisler, Assistant Attorney General, Chuck Rosenberg, United States Attorney, Scott R. McIntosh,

United States Department of Justice, Civil Division, Appellate Section, Washington, D.C., for Federal Appellees. Marc Rotenberg, Sherwin Siy, Electronic Privacy Information Center, Washington, D.C., for Amicus Supporting Appellant.

Before KING, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge KING and Judge SHEDD joined.

OPINION

DUNCAN, Circuit Judge.

Robert Peterson ("Appellant") appeals the district court's denial of his motion for a preliminary injunction to prevent the National Telecommunications and Information Administration ("NTIA") from enforcing a rule that requires public disclosure of certain personal information of any individual who registers an Internet domain on the ".us" top-level domain. For the reasons that follow, we conclude that Appellant lacks standing to prosecute his claims and, therefore, affirm the district court's order.

I.

A. The Internet and the Domain Name System

The Internet is an electronic network that interconnects computers worldwide, allowing users to communicate with one another. Each computer connected to the Internet is assigned a unique numerical address, otherwise known as an Internet protocol or IP address, to identify itself and facilitate the orderly flow of electronic traffic. An IP address is a string of up to twelve digits, such as "202.134.34.9." The IP address provides the basic routing information a user needs to contact and access a particular computer on the Internet, along with the website or other information stored thereon.

As the Internet grew over time and the number of websites increased dramatically, the everyday use of numerical IP addresses became unwieldy. Because of this, users began to associate letters and words with numerical IP addresses to make them easier to recall and the Internet generally easier to use. This practice led to the present ubiquity of common website names such as yahoo.com or google.com, both of which have underlying numerical IP addresses.

Each word- or number-based Internet address consists of a series of hierarchical "domains" that are separated by periods and become progressively general as one reads the address from left to right. For example, in the Internet address "msnbc.msn.com," "msnbc" represents the most specific domain in the address, followed by "msn," and then ".com;" with ".com" representing the most general domain, otherwise known as a top-level domain ("TLD"). Analogizing this Internet address to a physical street address, "msnbc" would represent the street, "msn" the city, and ".com" the state.

Because TLDs are the most general level of organization for Internet addresses, the administrators of TLDs represent the gatekeepers that individuals or businesses must satisfy in order to obtain the rights to use a specific Internet address. For example, one seeking to register the website "bluenote.com" must go to the administrator of the ".com" TLD to determine the availability of that Internet address and then, if it is available, satisfy the administrator's registration criteria in order to obtain the right to use that address.

TLDs are primarily controlled and administered by private entities. However, there is a series of country-specific TLDs, each of which is controlled by the corresponding government. The United States controls and administers the ".us" TLD through the NTIA.

B. Administration of the ".us" TLD

Until 2001, the NTIA restricted registration of Internet addresses, otherwise known as "domain names," on the ".us" TLD to government entities. That year, the NTIA concluded a three-year administrative process by issuing a statement of work ("SOW"), 65 Fed.Reg. 50964 (Aug. 22, 2000), setting out guidelines for private registrations on the ".us" TLD. Among other requirements, the SOW required the manager of ".us" TLD registrations to maintain and publish a public database of registrants' contact information, including the name and address of the domain name holder, as well as the name, telephone number, physical address and e-mail address for the technical and administrative contacts for the domain name (the "disclosure requirement"). 65 Fed.Reg. at 50967.

After issuing the SOW, the NTIA contracted Appellee Neustar, Inc. to manage ".us" TLD registrations. The NTIA-Neustar agreement incorporated the substantive requirements of the SOW, including the disclosure requirement. The agreement also authorized Neustar to subcontract with third-parties to sell ".us" domain registrations, but required any such contracts to incorporate all of the substantive requirements of the NTIA-Neustar agreement. Therefore, any such third-party agreements necessarily incorporated the disclosure requirement.

In 2002, Neustar entered into a third-party registration agreement with GoDaddy.com to sell ".us" domain name registrations. Despite its contractual obligations, GoDaddy.com began selling such domain names through its "Domains by Proxy" service without satisfying the disclosure requirement. These proxy registrations allowed an individual to obtain a ".us" domain name without having his identity publicly disclosed. Instead, GoDaddy.com would appear by proxy in the database of ".us" registrants as the domain-name holder, even though the actual registrant controlled use of the IP address.

In 2005, while searching the database of ".us" domain registrants, the General Accounting Office discovered—and then contacted the NTIA regarding—a number of domain holders with inaccurate contact information. After conducting its own investigation, the NTIA wrote Neustar to address the presence of inaccurate contact information, ordering it to instruct all third-party registrars to cease offering proxy services and to bring all existing proxy registrations into compliance with the disclosure requirement. Neustar complied and directed all third-party registrars to update existing registrations by January 26, 2006 and cease proxy services by February 16, 2006.

C. Appellant's Website

Appellant is the former registrant of the ".us" domain name, pcpcity.us, on which he operated a website, Point-Counter-Point City, dedicated to the discussion and debate of current events. Appellant chose to publish his website on the ".us" TLD because it purportedly "reinforce[d his] belief that [he was] representing American ideals by fostering political debate." J.A. 20. He registered the domain name through GoDaddy.com's proxy service, allegedly to shield knowledge of his identity and thereby to protect himself from harassment or retaliation for the viewpoints expressed on his website. Appellant, however, disclosed numerous aspects of his identity on pcpcity.us, including his name, hometown, and membership in the Illinois state bar.

After learning of the NTIA's efforts to eliminate proxy registrations on the ".us" TLD and bring existing registrations into compliance, Appellant filed suit seeking a preliminary injunction to prevent enforcement of the disclosure requirement.¹ Appellant claimed that the disclosure requirement violated his First Amendment right to speak anonymously and that the NTIA violated the Administrative Procedures Act ("APA"), 5 U.S.C. § 500 et seq., by failing to engage in proper notice-and-comment rulemaking when enacting it. The district court denied Appellant's request for a preliminary injunction, holding that: (1) the disclosure requirement was a content-neutral time, place and manner restriction on speech that did not violate the First Amendment; (2) the NTIA's actions were exempt from notice-and-comment requirements under the "government contracts" exception to the APA, see 5 U.S.C. § 553(a)(2) (2000); and (3) Appellant lacked standing to pursue his claims because he had not suffered an injury in fact. Peterson v. Nat'l Telecomms. & Info. Admin., No. 1:06-CV-96, at *5-13 (E.D.Va., Apr. 17, 2006) (unpublished). Appellant timely appealed, challenging each of the district court's rulings. We need look no further than the issue of standing to resolve this appeal.

II.

Appellant argues that the district court erred in holding that he lacked standing based on an absence of injury in fact. He asserts standing on two separate grounds: (a) on his own behalf for injuries that he personally suffered (i.e., first-party standing), and (b) on behalf of third parties...