Robert Peterson v. National Telecommunications

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 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; No. 06-1216 
CARLOS E. GUTIERREZ, in his
capacity as Secretary of Commerce;
NEUSTAR, INCORPORATED, a Delaware
Corporation,
Defendants-Appellees.
ELECTRONIC PRIVACY INFORMATION
CENTER,
Amicus Supporting Appellant. 

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 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; No. 06-1548 
CARLOS E. GUTIERREZ, in his
capacity as Secretary of Commerce;
NEUSTAR, INCORPORATED, a Delaware
Corporation,
Defendants-Appellees.
ELECTRONIC PRIVACY INFORMATION
CENTER,
Amicus Supporting Appellant. 
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(1:06-cv-00096-GBL)
Argued: November 28, 2006
Decided: February 27, 2007
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion, in
which Judge King and Judge Shedd joined.
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COUNSEL
ARGUED: James Edward Houpt, ORRICK, HERRINGTON &
SUTCLIFFE, L.L.P., Sacramento, California, for Appellant. Charles
Wylie Scarborough, UNITED STATES DEPARTMENT OF JUS-
TICE, 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. Rie-
bling, 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.
OPINION
DUNCAN, Circuit Judge:
Robert Peterson ("Appellant") appeals the district court’s denial of
his motion for a preliminary injunction to prevent the National Tele-
communications 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
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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" repre-
sents the most specific domain in the address, followed by "msn," and
then ".com;" with ".com" representing the most general domain, oth-
erwise known as a top-level domain ("TLD"). Analogizing this Inter-
net 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 Inter-
net 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 govern-
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ment entities. That year, the NTIA concluded a three-year administra-
tive 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 require-
ment"). 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 individ-
ual to obtain a ".us" domain name without having his identity publicly
disclosed. Instead, GoDaddy.com would appear by proxy in the data-
base 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 con-
tact information. After conducting its own investigation, the NTIA
wrote Neustar to address the presence of inaccurate contact informa-
tion, ordering it to instruct all third-party registrars to cease offering
proxy services and to bring all existing proxy registrations into com-
pliance with the disclosure requirement. Neustar complied and
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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, pcpci-
ty.us, on which he operated a website, Point-Counter-Point City, dedi-
cated to the discussion and debate of current events. Appellant chose
to publish his website on the ".us" TLD because it purportedly "rein-
force[d his] belief that [he was] representing American ideals by fos-
tering 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 registra-
tions on the ".us" TLD and bring existing registrations into compli-
ance, 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 dis-
trict 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" excep-
tion 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
1Appellant also sought a temporary restraining order, but that request
was rendered moot below when the disclosure requirement went into
effect without a ruling from the district court on the TRO.
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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 under the First Amendment doctrine of over-
breadth for injuries that they may suffer (i.e., third-party standing).
We consider each in turn.
A. First-Party Standing
Appellant first argues that he has standing in his own right because
the disclosure requirement violated his First Amendment right to
speak anonymously by compelling publication of his identity in con-
nection with his domain registration. See McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 341-47 (1995) (recognizing a First Amend-
ment right to speak anonymously). The district court rejected this
argument, holding that because Appellant "explicitly posts his full
name, city of residence, [bar] membership . . ., and other identifying
information on his website . . . [he] cannot show that by complying
with the [NTIA’s] requirement he would suffer an injury in fact."
Peterson, No. 1:06-CV-96 at *13. Based on our review2 of the record,
we agree.
In order to have standing, a plaintiff must establish, inter alia, that
he has suffered an injury in fact, that is, "an invasion of a legally pro-
tected interest which is concrete and particularized, as well as actual
or imminent."3 Friends of the Earth, Inc. v. Gaston Copper Recycling
2Although the order before us is a denial of a preliminary injunction,
which we normally review for abuse of discretion, Scotts Co. v. United
Indus. Corp., 315 F.3d 264, 272 (4th Cir. 2002), standing is a question
of law that we review de novo, Frank Krasner Enters., Ltd. v. Montgom-
ery County, 401 F.3d 230, 234 (4th Cir. 2005).
3To have standing, a plaintiff must also establish that "the injury [is]
fairly traceable to the challenged conduct; and [that] a favorable decision
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Corp., 204 F.3d 149, 154 (4th Cir. 2000) (en banc). The plaintiff must
"demonstrate a realistic danger of sustaining a direct injury as a result
of" government action. Babbitt v. United Farm Workers Nat’l Union,
442 U.S. 289, 298 (1979). Where no such injury is present, federal
courts are without constitutional authority to consider a plaintiff’s
claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60
(1992).
The First Amendment protects anonymous speech in order to pre-
vent the government from suppressing expression through compelled
public identification. See Buckley v. Am. Constitutional Law Found.,
Inc., 525 U.S. 182, 197-201 (1999); McIntyre, 514 U.S. at 341-44.
Forced public revelation discourages proponents of controversial
viewpoints from speaking by exposing them to harassment or retalia-
tion for the content of their speech. Buckley, 525 U.S. at 197-201;
McIntyre, 514 U.S. at 341-44. Speech is chilled when an individual
whose speech relies on anonymity is forced to reveal his identity as
a pre-condition to expression. See Buckley, 525 U.S. at 199 ("The
injury to speech is heightened for the petition circulator because the
badge requirement compels personal name identification at the pre-
cise moment when the circulator’s interest in anonymity is greatest.").
In other words, the First Amendment protects anonymity where it
serves as a catalyst for speech.
Appellant’s online postings are wholly inconsistent with his invo-
cation of this right because they demonstrate that his expression did
not rely on his ability to remain anonymous. On pcpcity.us, Appellant
publicly identified himself as holding a number of "elected" offices
in his virtual Point-Counter-Point City, promoted works published
under his own name, disclosed his state bar membership, identified
his hometown, and linked to his former website that carried debates
published under his own name. J.A. 748, 756-58. This information
was disclosed prior to—and independent of—any action on the part
of the NTIA. In addition, Appellant continued posting personally
identifying information after filing this lawsuit, which is purportedly
[is] likely to redress the injury." Miller v. Brown, 462 F.3d 312, 316 (4th
Cir. 2006). Because resolution of this appeal turns exclusively on the
question of whether Appellant can demonstrate an injury in fact, we need
not consider either of these additional standing requirements.
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based on a desire to maintain his anonymity. See J.A. 744 (posting
information about this lawsuit). The remaining information that the
NTIA requires ".us" domain registrants to disclose is easily obtained
from that which Appellant voluntarily revealed. See J.A. 740-41.
Based on these voluntary revelations, the concerns underlying the
right to anonymous speech simply are not present here. The disclo-
sure requirement exposed Appellant to no danger of harassment or
retaliation to which he had not already subjected himself. Because
anonymity did not serve as a catalyst for Appellant’s expression, the
NTIA’s disclosure requirement was no threat to his speech activities
and did not cause him injury.4 We, therefore, conclude that Appellant
cannot establish an injury in fact for purposes of standing.
Nevertheless, Appellant argues that the First Amendment encom-
passes a right to partial anonymity that allowed him to protect certain
aspects of his identity from disclosure even after voluntarily revealing
others. Appellant finds support for this argument in McIntyre, 514
U.S. at 342-58, and Watchtower Bible & Tract Society of New York,
Inc. v. Village of Stratton, 536 U.S. 150, 166-69 (2002), in which the
Supreme Court struck down laws as restraints on the right to speak
anonymously even though the petitioners, or those whose rights they
represented, voluntarily revealed their identities. Neither case sup-
ports Appellant’s position here, however.
The Supreme Court’s decision in McIntyre does not bear the
weight Appellant accords it. That the petitioner in McIntyre voluntar-
ily revealed her identity to a limited extent played no role in the
Court’s analysis. See 514 U.S. at 343-58. The petitioner was fined
pursuant to a state law that required campaign materials to identify
the individuals responsible for producing them. Id. at 337-38.
Although the petitioner did distribute anonymous materials, some of
the materials bore her name. Id. at 337. The Supreme Court held that
the state law was an unconstitutional restraint on her right to speak
anonymously without according any significance to the limited dis-
closure of her identity. Id. at 357.
4We do not reach the question of whether the disclosure requirement
might, under other circumstances, cause injury to an individual’s right to
speak anonymously.
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We likewise find Appellant’s invocation of Watchtower Bible
unavailing. In Watchtower Bible, the petitioners challenged a local
ordinance that required door-to-door canvassers to obtain permits
revealing their identities and then present them on request as they cir-
culated throughout the community. 536 U.S. at 153-56. The Court
struck down this requirement as an unconstitutional restraint on the
right to speak anonymously. Id. at 164-69. In doing so, the Court held
that the loss of anonymity inherent in the face-to-face interactions of
door-to-door canvassers did not impede enforcement of their right to
anonymity. Id. at 166-67. In other words, an individual may protect
his legal identity (i.e., name, address, etc.) from public disclosure,
even though he voluntarily reveals his physical identity by speaking
in public. See id.
While Watchtower Bible suggests the existence of a right to partial
anonymity, the holding is actually far narrower than Appellant’s
extrapolation. By distinguishing a person’s physical appearance from
his or her legal identity (name, address, etc.), Watchtower Bible
merely establishes that individuals may speak in public without other-
wise forfeiting their right to conceal the personal information neces-
sary to locate and harm them in retaliation for engaging in unpopular
speech. Id. at 166-67. Here, Appellant has already disclosed precisely
the type of information that identifies how to locate him both profes-
sionally and geographically. Therefore, we find no merit in his argu-
ment that Watchtower Bible embraces a right to partial anonymity
sufficient to overcome our conclusion that he has suffered no injury.
Ultimately, we conclude that Appellant lacks standing because he
voluntarily revealed his identity and, therefore, suffered no harm from
any compelled identification under the disclosure requirement.
B. Third-Party Standing
Appellant next argues that he has standing to raise a First Amend-
ment overbreadth challenge on behalf of third-parties not involved in
this litigation. The Supreme Court has relaxed standing requirements
for overbreadth challenges to allow litigants "to challenge a statute
not because their own rights of free expression are violated, but
because of a judicial prediction or assumption that the statute’s very
existence may cause others not before the court to refrain from consti-
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tutionally protected speech or expression." Broadrick v. Oklahoma,
413 U.S. 601, 612 (1973). "This doctrine, however, only assists plain-
tiffs who have suffered some injury from application of the contested
provision to begin with." Gilles v. Torgersen, 71 F.3d 497, 501 (4th
Cir. 1995). In other words, a party asserting overbreadth standing
must still demonstrate "a distinct and palpable injury." Burke v. City
of Charleston, 139 F.3d 401, 405 n.2 (4th Cir. 1998). This require-
ment is fatal to Appellant’s argument here because, as discussed
above, the disclosure requirement caused him no injury. Without such
an injury, Appellant lacks standing to bring an overbreadth challenge.
III.
Based on the foregoing, the district court’s order denying Appellant
Robert Peterson’s motion for a preliminary injunction is
AFFIRMED.
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