DomainTools appeals injunction decision in .NZ case

Cyber security service wants injunction thrown out.

Whois data and security service DomainTools has appealed a preliminary injunction brought against it by .NZ registry Domain Name Commission Limited (DNCL).

DNCL sued DomainTools in June 2018 over DomainTools’ collection and publication of .NZ Whois data. It argued that DomainTools’ actions violated DNCL’s terms of service, which are provided with each Port 43 Whois query result.

A Federal District judge granted an injunction that ordered DomainTools to not collect any more .NZ Whois records and to remove any previously published records while the lawsuit proceeded.

DomainTools appealed the decision to the Ninth Circuit Court of Appeals.

In its opening brief (pdf), DomainTools argues that DNCL’s terms of service were not binding on DomainTools because of how the terms of service were published. Including the terms with each Whois result is considered a “browsewrap” agreement; the other party does not check a box or make any other affirmative action to agree to the terms.

DomainTools notes that “The lower court acknowledged that so-called “browsewrap” agreements like DNCL’s terms of use are not enforceable unless “the user has actual or constructive knowledge of the [terms of use].” In the court’s view, however, DomainTools’ repeat queries established sufficient knowledge.”

The company says that the lower court’s view should not apply because all of DomainTools’ Whois queries were “conducted by an automated program on a dedicated computer-to-computer channel acting without human intervention.”

It also says that the terms were written in a way that didn’t suggest that DomainTools’ use of the data violated the terms.

DomainTools wants the court to weigh the negative impact to DomainTools’ customers against the impact on .NZ registrants whose information is published.