Domains By Proxy Lawsuits: Uncovering A DBP Customer

Domains By Proxy Lawsuits
Arizona-based company, Domains By Proxy, hides user information from public view. Can you subpoena them for information and get it?

Domains By Proxy Lawsuits

Have you ever tried to uncover a website owner using ‘Whois’ information, only to find ‘Domains By Proxy’ is the registrant? The discovery can be frustrating – especially if someone defamed you online and you want to go legal on their butt. After all, it’s tough to sue a person for defamation, infringement or dilution if you don’t know who they are.

It is possible, however, to uncover anonymous defamers who use privacy intermediaries, like Domains By Proxy.

Domains By Proxy 101

Domains By Proxy is a Delaware corporation, headquartered in Arizona and owned by hosting/domain giant, GoDaddy. DBP offers domain registration privacy services that shield customers’ names from public view. When a person uses Domains By Proxy, DBP’s information populates the “Whois” database, thus making it difficult to uncover the registrant’s true identity.

Domain By Proxy’s Definition Of Privacy

Domains By Proxy is not loved by all. Some folks feel the company talks a good game, but ultimately is a double dealer. Accusations of “malicious business activities including inducements to join their service,” have plagued the company for years. In addition, many detractors think DBP does a bad job of keeping customers’ data private.

Domains By Proxy’s policies, however, are clearly delineated in their terms. Section 4 of the DBP user agreement states the company has the “absolute right and power…without any liability to you whatsoever,” to either: (1) close your account and (2) reveal your name and personal information.

While Domain By Proxy’s less-than-private policies may be kryptonite to dastardly ne’er-do-wells, the company’s willingness to cooperate when a law is broken is beneficial to people who’ve been anonymously defamed online.

Domains By Proxy Lawsuit: Powermark Homes v. John Doe

Perhaps the most well-known Domains By Proxy lawsuit is Powermark Homes v. John Doe.

Mark and Lisa Powers owned and operated a real estate company called Powermark Homes, Inc. Like all companies, Powermark had an unsatisfied customer – an unsatisfied customer that decided to create a couple of “suck sites” about the Power’s venture.

When the Powers learned of the disparaging websites, they filed a complaint against John Doe and Domains By Proxy citing defamation, disparagement and invasion of privacy. In addition to the suit, the plaintiffs also sent DBP a DMCA takedown request and sought a temporary restraining order requiring the “defendants to remove the false and defamatory website.”  The Powers averred “the statements, allegations, pictures and other representations contained in the false Internet site are in many or most instances false and misleading against some of…the plaintiffs, and assert false allegations of fact which directly harm the reputation and public appearance of some or all of the plaintiffs.”

As is the DMCA process, DBP notified Doe of the DMCA takedown request. Doe then engaged in some pro se lawyering. Eventually a public citizen litigation group came to Doe’s legal rescue. Litigation ensued.

Ultimately, a judge granted Doe’s and DBP’s motion to dismiss the defamation case, because the Powers, according to the court, didn’t clearly delineate the nature of the defamation. That said, the Powers did succeed in getting the “suck sites” down via the DMCA. So, while they didn’t get any money out of Doe or DBP, they got the site removed from the Internet – which, in many cases, is all a defamation victim wants.

Powermark Homes v. Doe and Domains By Proxy was not a popular ruling. Many saw it as a clear cut example of how the DMCA can be used unfairly to silence critics. And, from a purely objective legal standpoint, that’s a fair assessment. But for someone looking to rid the ether of unflattering or disparaging comments, the DMCA can be a handy tool. Basically, it’s a problematic loophole-filled law, with good intentions.

Domains By Proxy Privacy Policy Explained (Last Revised 3/22/2013)

The beginning of Domain By Proxy’s privacy policy states the company “will not give any information about you to others without your express permission,” language in the middle, however, qualifies that statement. Further down the Domains By Proxy privacy policy, it states that they will provide “information about you to third parties to provide various services on [their] behalf.” These services include:

  1. Processing credit card payments;
  2. Serving advertisements;
  3. Conducting contests or surveys;
  4. Product and customer demo analysis;
  5. Shipping; and
  6. Customer relation management.

They also reserve the right to:

  1. Allow third party ad servers to “employ cookies and action tags to measure advertising effectiveness.”
  2. Supplement “the personally identifiable information you submit” to them “with information from third party sources.”

Domains By Proxy’s Stance On Giving Information When Subpoenaed Or Approached About A Lawsuit

Domains By Proxy clearly states that they may share information with attorneys, law enforcement officials or other legal bodies to “resolve any and all third party claims, whether threatened or made arising out of your use of a domain name registered by DBP on Your behalf.”

Other times when DBP says they will reveal your information:

  1. If you breech any provisions of the TOS or DBP anti-spam policy.
  2. Protect the integrity and stability of the applicable domain name registry.
  3. Comply with any subpoenas, court orders or requests from law enforcement.
  4. Comply with UDRP.
  5. “To avoid any financial loss or legal liability (civil or criminal) on the part of DBP, its parent companies, subsidiaries, affiliates, shareholders, agents, officers, directors and employees.”
  6. Domain name infringes on another’s intellectual property or “other legal rights.”

If DBP catches wind that you are engaged in any “illegal or morally objectionable activities including, but not limited to, activities which are designed to:”

  1. Appeal to prurient interests;
  2. Defame, embarrass, harm, abuse threaten or harass third parties;
  3. Violate laws;
  4. Promote hate crimes, terrorism and child pornography;
  5. Promote vulgar, obscene, invasive, privacy, racially, ethically or otherwise objectionable;
  6. Impersonate;
  7. Harm minors in any way;
  8. Spread an e-virus.

What If I Defamed Someone, And Canceled My Domains By Proxy Account Before The Person I Defamed Figures Out It Was Me?

Canceling your Domains By Proxy domain won’t help much if a potential plaintiff is on the hunt. The company privacy policy states, “when your Domain By Proxy account is canceled” (either voluntarily or involuntarily) all of your personally identifiable information is placed in “deactivated status on our relevant Domains By Proxy databases. However, deactivation of your account does not mean your personally identifiable information has been deleted from our database entirely. We will retain and use your personally identifiable information as necessary in order to comply with legal obligations, resolve disputes, or enforce our agreements.”

If A Plaintiff Gets The Government or Lawyers Involved, And You Genuinely Did Something Wrong, Expect Domains By Proxy To Give Up The Goods On You

Under Domain By Proxy’s “Compliance with Laws and Law Enforcement Section” it states:

“We will disclose any information about you to Government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including without limitation subpoenas), to protect our property and rights of a third party, to protect the safety of the public or any person, or to prevent or stop activity we consider to be illegal or unethical. We will also share your information to the extent necessary to comply with ICANN’s rules, regulations and policies.”

In other words, if you genuinely defamed someone, ripped off intellectual property, or in some other way broke a state of federal law, Domains By Proxy may have no qualms about giving up the goods on you. That said, they’re known to follow DMCA standards, so if you file a nebulous – or flat out false – DMCA takedown request, don’t expect cooperation. More than that, if you do pursue a false DMCA takedown, you may be the one who ends up under a pile of debt, because false DMCA request laws exist.

In order for a claimant to open a dialog with DBP about seeking identifying information in service of a civil legal matter, a valid subpoena must be faxed, mailed or served to DBP at their Scottsdale, AZ headquarters.

If the issue is not an emergency, DBP won’t immediately hand over user data. They will alert the affected customer, giving them an opportunity to quash the subpoena.

Domains By Proxy also retains the right to “change an administrative fee” to the person or entity submitting the request, for costs associated with subpoena compliance.

If you need to unearth the identity of a Domains By Proxy customer, contact Kelly Warner Law. We’ve dealt with Domains By Proxy lawsuits and litigation before and understand the best way to work with the company. We’ll review your circumstances and advise you on the best way to move forward. If you’re serious about suing – or getting online material removed quickly – don’t dilly-dally, because defamation statutes of limitations, in most jurisdictions, aren’t long.

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