d/b/a NAME.SPACE, :

Plaintiff, :

v. : 97 Civ. 1946 (RPP)











Milton L. Mueller declares under penalty of perjury as follows:

    1. My name is Milton L. Mueller. I am an Associate Professor at the Syracuse University School of Information Studies, and I make this Declaration in support of the Motion for Preliminary Injunction filed by pgMedia, Inc. The matters stated in this Declaration are true of my own knowledge except as to the matters herein stated upon information and belief, and as to those matters, I believe them to be true.
    2. I hold the Ph.D. in Communication from the University of Pennsylvania’s Annenberg School. I have written extensively on domain name issues, including "The Battle over Internet Domain Names: Global or National TLDs?" Telecommunications Policy 22, 2 (March 1998); "Internet Governance in Crisis: The Political Economy of Top-Level Domains," Proceedings of the Annual Conference of the Internet Society, INET 97 (June 1997); "Internet Domain Names: Privatization, Competition, and Freedom of Expression," Cato Institute Briefing Paper No. 33 (October 1997).
    3. The purpose of this Declaration is to demonstrate that, because Internet domain names are a communicative and inherently content-based form of speech, they deserve full protection from government restriction under the First Amendment.
    4. Domain names are the character combinations used to indicate the Internet address of an Internet user. Although each user’s "real" address is a set of numbers, such as 99.87.654.33, these numeric Internet Protocol (IP) addresses are difficult to remember and to key in properly. By convention, IP addresses have been translated into character combinations for easier use. Domain names are hierarchical in structure, with the "highest level" name located farthest to the right in the address. Thus, the "top-level domain name" or "TLD" is that character string located to the right of the "dot" or "." ("gov" is the TLD in the domain name NSF.gov). Domain names to the left of the "." are second-, third-, fourth-, etc. level domain names.
    5. In order to function properly as an Internet address, each domain name must be unique. Domain names are most useful when they are comprised of semantically meaningful character combinations, such as books@the-library.com or alarmsystems.com.
    6. Domain names as used on the Internet are not only addresses, but also function as a form of expression or communication. Domain names convey ideas and transmit organizational identities. They can be and are put to creative uses. They are often selected to attract attention, and in some cases they form phrases. Domain names can make reference to people, institutions, and events.
    7. Since the mid-1980s, the communication capabilities of domain names have been restricted by fixed limits on the number of TLD strings. These limits are artifacts of the Internet’s historical status as a restricted medium for military and scientific networking. The original designers of the domain name system envisioned a restricted network of a few thousand users equally balanced among educational, corporate, governmental and military organizations. They intended second-level domain names to be organization names, and the TLD to be a rudimentary index of the type of organizations (commercial = .com, governmental = .gov, etc.)
    8. Once the Internet was opened to commercial and private usage, however, users and entrepreneurs quickly discovered and exploited the communication capabilities of domain names. The domain name ceased being a rigid hierarchy analogous to a postal address, and became more analogous to a statement or a brand name. "Scientology-kills," "intellectualcapital," "hot-site-of-the-day" and "alien3-themovie" are all real, registered second-level domain names. They illustrate the standard approach to domain names now that the Internet is a public and commercial medium, one in which domain names are used to convey content and make political, economic, cultural or commercial statements.
    9. The World Wide Web is a hyperlinked environment. Navigation takes place by pointing and clicking on "URLs" (uniform resource locators) that provide instant links to documents on different networks. Most URLs are composed of domain names and document names. (Example: http://www.syracuse.edu/index.html). Internet users decide whether to "visit" a particular Web site based, in part, on the information conveyed to them by the domain name. Thus, domain names are a critical form of communicative interaction with the public. The domain name tells the user what to expect if they "travel" to a site, or serves as an inducement to come to a site. A short, or interesting and meaningful domain name is more likely to attract attention, and web traffic than a long and complex, meaningless or boring one.
    10. Both this Court and NSI itself have already recognized the applicability of the First Amendment to domain names. In Planned Parenthood of America v. Bucci, this Court held that where a domain name is used for communicative purposes, the First Amendment immunizes domain names users from trademark liability. Likewise, in refusing to register a domain name because it contained the string "shit," NSI claimed that it had "a right founded in the First Amendment to the U.S. Constitution to refuse to register, and thereby publish, on the Internet registry of domain names words that it deems to be appropriate." Domain names routinely implicate the "core" First Amendment value of political speech. For example, the NAACP and the Anti-Defamation League recently registered a number of domain names using variations of the words "nigger" and "kike" under the top-level domain names .com, .org, and .net. The NAACP will reportedly link its newly acquired addresses to a web site focused on racial harmony. The ADL apparently plans to keep others from using the derogatory words to create racially charged sites. These groups understand that even unsavory speech is protected under the First Amendment, and take the communicative value of domain names so seriously they are willing to commit scarce resources and energy toward ensuring their use or non-use in a manner they deem to be positive.
    11. Similarly, a passionate opponent of the ideology known as "Scientology" has registered the name "scientology-kills.net" to spread his opposition message. The Church of Scientology has attempted to prevent this activity by threatening trademark litigation over the use of its name. Whether or not the domain name is eventually be found by the courts to be a trademark violation, and therefore potentially restricted by statute, this case is a prime example of how the use of domain names routinely raises freedom of expression issues that can only be resolved by reference to the First Amendment.
    12. Domain names are also used for comic or parody purposes. The domain name PETA.org was registered not by the politically active animal protection group, "People for the Ethical Treatment of Animals," but rather as a parody by a group that calls itself "People Eating Tasty Animals." Quite clearly, either use of the word PETA in a domain name carries a particular message, thought or communication.
    13. There are literally millions of possible top level domain name strings. The current prohibition on the use of TLDs other than .com, .net, .org, .edu, .gov, .int, and the semi-restricted country codes, such as .us, significantly limits the range of expressions that could become domain names in an unrestricted system. Direct evidence of this fact is the growing trade in registered second level domain names. In the past two years a significant cottage industry of name speculators has developed who register hundreds of second-level domain names under .com, .net and .org and re-sell them for five to 1,000 times the $100 NSI registration fee. teaches us that the huge gap between the cost of registration and the price charged by these name speculators is a precise measure of the extent to which the supply of domain names is artificially restricted by the refusal of NSI and the National Science Foundation, as alleged by pgMedia in this litigation, to permit new TLDs to be added to the Internet’s root server.
    14. To the extent the government acts to restrict the number of TLDs that may be created, or the character strings that may be used to form the TLDs, it is enforcing a prior restraint on speech in a forum that the Supreme Court, in Reno v. ACLU, found to be worthy of the highest level of free speech protection. Specifically, a government-imposed requirement that the Internet domain name system can only recognize those TLDs currently in use, such as .com, .net, .org, etc., clearly prohibits Internet users from certain preferred speech, whether it be Clinton.sucks, NYGiants.NFL, or world.peace.
    15. The censorship of any but a few, government-picked TLDs, and all the secondary domain names that could be registered beneath them, cannot be justified as essential to meet a compelling government interest. It is my understanding that there is no technical reason to prohibit the addition of new TLDs. The Internet will not collapse and users will go unaffected if new TLDs are added.
    16. Similarly, there is no valid trademark-based rationale for restricting the number of TLDs. The courts have found that valid trademarks override prior registration of a domain name when there is a danger of dilution and consumer confusion. Mark owners thereby have ample protection from any infringing uses of domain names. Further, as with every other form of media, from magazines to television to t-shirts, it is the responsibility of the trademark owner, not the government or the media provider, to police violations of a mark. Any restriction that attempts to address trademark concerns through TLD restrictions will only inhibit the economic efficiency of the Internet while inexcusably limiting free speech.
    17. Lastly, there is no valid government justification of TLD restrictions based on the prospect of heightened customer confusion. The categorical integrity of the original TLDs has been breaking down for the past three years. There is no longer any meaningful distinction between the type of content a user is likely to find in a domain registered under .com, org, .net, or any of about 200 possible country code TLDs. Many country code registries actively solicit registrations from other countries. Thus, even under the existing restricted environment there is a virtually unstoppable stream of un-indexed, unorganized, but legal Internet addresses. Adding new top-level domain names will not significantly exacerbate this problem, and certainly not to a point sufficient to justify the restriction of public communication.
    18. The United States government should be required to uphold the principles embodied in the Bill of Rights and clearly recognize that the core First Amendment values of political speech and freedom of expression are directly implicated in its treatment of domain names. Consistency with the goals of the First Amendment demands a completely open and consumer-driven system of TLD registration. There is no legitimate governmental interest, let alone the compelling interest needed for a prior restraint, for the suppression of free expression by users of domain names and TLDs.

I hereby declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information and belief. Executed this 11th day of May, 1998, at Syracuse, New York.



Milton L. Mueller