It is increasingly becoming the practice of DNS intermediaries to seize domain names used by lawful websites for violation of acceptable use policies related to offensive content or ‘hate speech’. Proponents of Internet freedom have argued that companies providing foundational Internet infrastructure should not attempt to police 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 – 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 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 to date has been paid to the precise nature of registrants’ interests in that property or the rights that attend those interests. Making the case that registrants take full title to their domain names upon registration, I argue that DNS intermediaries who attempt to seize lawfully registered and operated domain names in the absence of court orders can be held liable under common law claims of conversion and trespass to chattels, despite the contractual rights they purport to reserve to themselves. I further explore how federal law could supplement these existing protections by enshrining domain names as a new class of intellectual property.
Nugent, Nicholas, Masters of Their Own Domains: Property Rights As a Bulwark Against DNS Censorship (November 20, 2019).