HEADLINE: The Internet as Governmental Action; Courts have yet to find that the U.S. government's control over the Internet is a basis for state action claims

BYLINE: Jonathan Bick Bick is of counsel to WolfBlock Brach Eichler of
Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of 101 Things You Need To Know About Internet Law [Random House 2000].

Transactions are divided into two domains: those that are government controlled and those that are privately controlled. Depending on which type of transaction is involved, different constitutional rights apply.
In particular, if the Internet is nongovernmental, then it may generate terms of use agreements to prohibit political speech. If the Internet is governmentally controlled, then Internet users have a First Amendment right to use the Internet for public speech.

The principle commonly known as the state action doctrine clearly sets forth the principle that only government actors are subject to certain constitutional limitations. Most importantly, the state action doctrine is a preliminary test for determining which cases are worthy to proceed on their merits with respect to whether constitutional rules apply.

It has been argued that the United States owns the Internet. Proponents of this idea suggest that the United States has the right to control the Internet because it was invented and funded by the United States government. They also point to the governance power the United States has over the Internet and the control it has over each component of the Internet's infrastructure.

The infrastructure of the Internet consists of four elements. First, the Domain Name System (DNS) is the method by which Internet addresses in mnemonic form, such as BickLaw.com, are converted into the equivalent numeric IP address such as 123.456.7.8. The DNS was introduced and is maintained in the United States. The United States controls the DNS two ways. First, the computer which controls the DNS is located in the United States, thus precluding other governments from physical access.
Second, the organization which maintains the DNS control computer, NSI-Verisign, is contractually obligated to secure written approval from the U.S. Department of Commerce before making changes to the DNS. This gives the United States the capacity to limit who may use the Internet.

Government Control

The United State's control of the Internet is evidenced by its ability to add, delete or change Internet addresses. The United States regularly demonstrates this control through the enforcement of the Uniform Domain Name Dispute Resolution Policy (UDRP), which is a set of rules for conflicts between trademark and domain-name holders.

In addition, the United States government and those subject to its laws own most IP addresses and are responsible for most of the world's e-commerce. IP addresses are used to deliver packets of data across the Internet. They are assigned by entities subject to the laws of the United States. In particular, the American Registry for Internet Numbers
(ARIN) is incorporated in Virginia. ARIN provides services related to the technical coordination and management of Internet number resources for the United States and Canada. Additionally, the United States, through ICANN, derives some power over the Internet from the allocation of IP addresses.

The United States government, working through its Defense Advanced Research Projects Agency, promulgated the TCP/IP protocols and continues to maintain them. These protocols are the world's most popular method for using the Internet as a communication system because they can be used to communicate across any Internet network. Technically, the TCP/IP protocols have been set as Internet standards by the adoption of a world wide standard-setting organization known as the Internet Engineering Task Force (IETF). Practically speaking, however, when the United States makes a change, the IETF simultaneously makes the same change because the United States is such an integral part of the Internet.

The United States government also provides funding and computers to maintain the Internet's backbone system. The Internet backbone is a central network that links all the parts of the Internet together.

It must be noted that the United States does not have absolute control of the Internet. Other countries have some control. Such control is limited by its power to block physical access to the Internet. However, absolute power is not a requirement for applying the state action doctrine.

State Action Claims

Thus, it is clear that the United States has substantial control of the Internet; it must be assessed if such control is the basis for the application of state action claims. With the exception of the Thirteenth Amendment's ban on slavery, the U.S. Constitution does not directly control the conduct of private individuals or organizations. Thus, constitutionally protection violation claims must be dismissed if the alleged injury is not the result of federal, state or municipal wrongdoing.

Courts typically focus on the alleged conduct and then assess whether such conduct is fairly attributable to a governmental entity. In short, courts look to the most proximate cause of the injury, and ascertain whether the ultimate bad actor was a government employee or whether the action should be attributed to the government for some other reason.

For example, if someone sues an Internet Service Provider -- which is a private entity under the First Amendment -- for imposing a rule restricting members' Internet speech, the first question framed is whether the rule should be counted as state action. If there is a sufficient basis to find the alleged conduct to be a state action, the courts treat the case as if the government had directly imposed the rule; if there is not a sufficient basis to find a state action, the claim is dismissed.

It is important to note that the aforementioned state action inquiry occurs prior to, and separate from, the merits of a constitutional claim. Thus, an Internet related injury claim should determine if the Internet is a case of governmental action without regard to the constitutional right at issue.

From a legal perspective, a state action question should present a yes or no response. Either a state action exists and the act complained of is attributed to the government, or there is no state action, and the case is dismissed.

However, the nature of a plaintiff's constitutional claim does seem to influence state action determinations. For example, a court is more likely to find state action in a racial discrimination case than in other disputes. Additionally, it should be noted that the court has turned a blind eye to some admitted government conduct that does not count as state action for purposes of constitutional law. Such action is necessary to avoid extreme results such as unfeasible governmental entanglement. For example, the sweeping nature of the Due Process Clause, which applies to all denials of life, liberty or property, is often limited by the courts. In particular, consider that although nursing homes are extensively regulated, the fact that they are subject to state regulation does not by itself convert its action into a state action for purposes of the Fourteenth Amendment. Jackson v. Metropolitan Edison Co., 419 U.S. 345.

In short, under the conventional state action approach, which asks "Is there state action?" before proceeding to the merits, courts are forced to limit their inquiry to only certain types of governmental acts. To find state action applies to a particular institution, courts must find more than the provision of certain governmental benefits, it must have either significant control over an input into the policymaking process of the institution providing a good or service in question, or be significantly involved in the financing and running of the institution that provides the good or service in question. For the time being, it appears that the courts have failed to find that the government's Internet involvement rises to the level of state action. However, as the United States' control of the Internet increases, courts will likely to reverse this finding.