Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding D.C. No.3:09-cv-03585-CRB
The opinion of the court was delivered by: McKEOWN, Circuit Judge
Submitted December 9, 2010*
San Francisco, California
Before: Dorothy W. Nelson, David R. Thompson, and M. Margaret McKeown, Circuit Judges.
*The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
There is no simple remedy for the vast number of unsolicited emails, popularly known as "spam," that fill our electronic inboxes daily. Even though federal and state legislatures have adopted various laws to combat this problem, "spammers" continue to find new ways to advertise. Daniel Balsam, a victim of spam, seeks an alternative method of enforcement by bringing claims against the registrar of a domain site that bombarded him with more than 1,000 unwanted emails advertising a pornographic website. He claims that the registrar utilizes a system to hide the identity of spammers, making it difficult to identify the spammer. We consider Balsam's claim that he is an intended third-party beneficiary of an agreement between the registrar and the Internet Corporation for Assigned Names and Numbers ("ICANN"). Under Balsam's theory, the agreement's provisions on wrongful use of domain names inure to his benefit. Although his approach is novel and creative, it cannot survive a motion to dismiss.
ICANN is a private, non-profit corporation that administers the registration of internet domain names. Tucows Inc. ("Tucows") is one of many registrars of domain names, accredited by ICANN to sell domain name registrations. To be accredited, Tucows had to enter into ICANN's Registration Accreditation Agreement ("RAA"), a standard form contract under which a registrar sells domain name registrations. A party that purchases a registered domain name from Tucows becomes the registered holder under the RAA.
Between October 2005 and May 2006, Balsam claims he received 1,125 "spam" emails advertising the website "adultactioncam.com." In an effort to ferret out the source of these emails, Balsam searched ICANN's public database, which listed Tucows as the registrar of the website and Angeles Technology, Inc. ("Angeles") as the registered name holder.
Balsam filed suit against Angeles alleging violations of California's law restricting unsolicited commercial email. See Cal. Bus. & Prof. Code § 17529.5. In March 2008, the district court in that case entered default judgment in Balsam's favor for $1,125,000. See Balsam v. Angeles Technology, Inc. et al., 06-CV-4114 (N.D. Cal.).
Balsam's unsuccessful efforts to recover the default judgment from Angeles ultimately led to the lawsuit at issue in this appeal. After Balsam's initial search of the ICANN database, Angeles apparently opted into Tucows's "Contact Privacy" feature.*fn1 Balsam was thus unable to locate Angeles - or otherwise identify the true operator of "adultactioncam.com" - after the default judgment was entered in his favor. Unable to collect the $1.125 million judgment, Balsam contacted Tucows and demanded that it reveal the identity of the operator of "adultactioncam.com." Balsam claimed that ...