Document Type

Article

Publication Title

Colorado Technology Law Journal

Abstract

It is increasingly becoming the practice of domain name system (DNS) intermediaries to seize domain names used by lawful websites for violating acceptable use policies related to offensive content or hate speech. Website hosting companies and social media platforms, entities that use but do not operate core Internet infrastructure, have long reserved and exercised their rights to gate their offerings, leaving booted speakers free to migrate to other providers. But registrants deprived of their domain names lack similar options to maintain their presence in cyberspace. The loss of a domain name inexorably results in the takedown of any website that uses the domain name, even if hosted elsewhere, and leaves a potentially invaluable asset essentially free for the taking by another. Proponents of Internet freedom have therefore argued that companies that operate foundational Internet infrastructure, such as the DNS, should play no role in policing content, no matter how deplorable, and that DNS censorship, once normalized, could easily spread to other minority groups and viewpoints.

Acknowledging that DNS intermediaries-the companies that offer domain names and make them operational on the Internet are private actors whose actions are not subject to First Amendment constraints, critics of DNS censorship seem to tacitly concede that DNS intermediaries may take whatever actions are permitted under their terms of service, appealing instead to policy arguments or calls to enact new protective legislation. But I argue that registrants already possess the legal means to protect themselves from domain name seizure through the property rights they acquire in their domain names.

Although the property status of domain names is by now fairly well established in the case law, scant attention has been paid to the precise nature of registrants' interests in that property. Making the case that registrants take title to their domain names upon registration, I argue that registrants may state valid claims under conversion and trespass to chattels when DNS intermediaries attempt to seize lawfully registered and operated domain names in the absence of court orders, despite the contractual rights such intermediaries purport to reserve to themselves. I further explore how federal law could supplement these existing common law protections by enshrining domain names as a new class of intellectual property.

Publication Date

2021

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