Dallas Morning News

E-vorce

Cooling relationships can ignite hot tugs-of-war over the rights to e-mail and Web site addresses

By Doug Bedell

Staff Writer of The Dallas Morning News

This month, the cyberwords dot.com and e-tailer began appearing in Random House dictionaries.

With the rise in the number of custody disputes over Internet e-mail and Web addresses, another may not be far behind: e-vorce — n.v.; an electronic splitting of the sheets.

In divorce and Internet service provider discussions across the Net, there are signs that husband-wife and employee-employer breakups are involving more disputes over Web addresses and other electronic property.

Sometimes, things get downright nasty. A husband may try to commandeer the couple's domain name by persuading the couple's ISP to change account passwords. A fired employee may claim rights to a company's Web site and attempt to shut out the former boss. "Anything that has value, people will fight over, it seems," says Ethan Katsh, a professor of legal studies at the University of Massachusetts at Amherst who arbitrates some battles for the Internet organization assigning domain names.

Says divorce expert Mary Jo McCurley, former president of the Texas chapter of the American Academy of Matrimonial Lawyers: "With telephone numbers, they usually stay with whoever has the house. Internet addresses are something new and different, but I have no doubt we're going to have to address them, too."

E-vorce, American style

These new-age e-property disputes are popping up all over the Web. For example, in June, a woman identifying herself only as BeautyXpertGRRL began a lively e-vorce discussion on the Remarq divorce support message list www.remarq.com/read/divosupp/ .

After five years of marriage, she said, things were coming to an end. "We jointly own an Internet domain," BeautyX-pertGRRL wrote. "This domain is a hobby Web site and brings about $1,700 per month from banners mostly. Anyway, I am bored with my husband and met a very exciting, wonderful person with whom I want to be instead of the fat SOB. "The question is, who gets the Internet domain? ... He says that since he owned the domain prior to our marriage, it is legally premarital property. He created most of the content after our marriage, though. As a woman, I feel entitled to half of the monies. I need this money to support myself, whereas he will be able to make more." Responses and advice — none from lawyers — ranged from the indignant ("You are a pig! You get nothing!") to the thoughtful.

"He gets the domain and all income there from," wrote Scott Babb. "You may get some level of negotiated support, which may include consideration for the income from his Web site." Actually, Mr. Babb may have been close to the advice a cybersavvy divorce lawyer would offer, says Ms. McCurley. Ownership and custody of an electronic property such as a domain name would fall under most states' marital property definitions, she says. "Especially in that one, where there is like $1,700 income from the Web site," Ms. McCurley says. "Absolutely. I think one of the parties could petition the court and say, 'Listen, I'm the one that should get the Web business and here's why.' "

If one of the divorcing parties moves to bar the other from access to the domain or its e-mail, Ms. McCurley says, a family court could be asked for a temporary custody order and, perhaps, order the Web site's income split until the matter is handled in a final divorce agreement.

"Temporary hearings are all about who's in control of the house, the business and that sort of thing," Ms. McCurley says. "It's just the sort of thing a court would have to make a decision about."

Subpoenas for ISPs

As relationships break down, ISPs — the companies hosting a couple's Web pages and controlling access to e-mail addresses — increasingly find themselves in the middle.

On Web discussion boards, those who run small and large ISPs across the world are reporting unsettling new confrontations.

In May, ISP-Planet www.isp-planet.com , which maintains Web-based list-servs for the profession, featured a lengthy debate concerning threats and demands from clients.

A.M. Salim of Localweb.com said his company had one brush with an e-vorce, but he managed to resolve it with a little research.

"We had been working with the husband all along — real nice guy, knew me by name and I knew him by name — and he had another three or four domains with us. One day we get a call from his wife — never heard from her prior to this — saying, 'Please disable access to her soon-to-be ex,' that she is the real owner of the company, he was just an employee."

Since the account had been opened in the company's name, Mr. Salim said, he simply verified that the wife was the head of the company in papers filed with the Texas Secretary of State. The soon-to-be-ex-husband was then - cut off from domain access. "In any case, we did not hear back from either party after that, so I don't know if matters got resolved, they got undivorced or what," Mr. Salim wrote.

It is obvious that electronic commerce and domain relationships are becoming central to people's lives, says Steve Linebarger, president of Texas Metronet, a North Texas ISP. "We see more people doing something on a personal basis that has an overlap with that of corporations," Mr. Linebarger says. "That's going to lead to more and more problems."

Beyond marital conflicts over electronic properties, ISPs are often approached by federal investigative agencies and jilted business partners who want access to accounts and their records. "In two or three circumstances where we've been approached, my rule of thumb has been, 'Give me a court order or a subpoena; take it out of my hands, please,' " says Mr. Linebarg-er.

ISPs can't run the risk of alienating either party in a dispute, says Mr. Linebarger, an active member of the Texas ISP Association www.tispa.org

In the case of some business partnerships, however, ISPs are left with few guidelines.

Heather Peel of Canadian ISP TheNetNow. com recently regaled ISP-Planet's readership with a troubling tale of a conflict between two lawyers in the midst of dissolving their partnership.

One was the Webmaster who built the company's online site but had registered the domain in his own name. "He now says since he is the domain owner that we must give him access to the Web site," says Ms. Peel. The other partner claimed ownership of the corporation and presented the ISP with corporation papers to prove it. He contended that all the Webmaster's work was done as part of company business, no matter whose name is recorded on official domain ownership records. He wanted the former Webmaster banished from all access.

Ms. Peel said being caught in the middle was untenable. "I have removed everyone's access to the Web site for now," Ms. Peel wrote. "I've told the Webmaster to contact the owner and try to work things out with him. Meanwhile, I'm wondering where we are left from a legal standpoint." Freddie Hutter of SkyCanada.Net said such internal disputes over electronic property should be handled as they would with company cars. "The ex-employee leaves, but while employed he bought this car in his own name —not the firm's," Mr. Hutter said. "Hence, there is no doubt he can take off with it, but the firm may wish to pursue civil or criminal action against him to regain possession if he used company funds to acquire it. ... As the me chanic, you don't want to hear their sob stories, right?"

Rise of cybertribunals

Help for the ISPs and quarrelling parties may be on the way.

The Internet Corporation for Assigned Names and Numbers, or ICANN, a quasi-public body that oversees domain registrations, has recently started a dispute mediation process to handle limited kinds of conflicts over the 20 million Web addresses in its database.

Beginning late last year, ICANN started m empowering panels of lawyers and former judges to conduct online "cybertribunals" to decide some cases. Whether they realize it or not, everyone who registers a domain agrees to submit to ICANN-approved arbitration when conflicts arise. So far, more than 1,000 e-custody conflicts have flooded into Web sites run by four organizations accredited by ICANN. Cybertribunal jurisdiction is currently limited to conflicts over trademarked names and "bad-faith" domain registrations such as those hoarded by cybersquatters.

Cybersquatters often attempt to buy up names others might want, then sell them to individuals and corporations for astounding sums. ICANN has decided that, when challenged, many of these purchases should be disallowed unless the initial purchaser has a legitimate reason for holding the name.

For example, Julia Roberts successfully claimed juliaroberts.com from Russell Boyd of New Jersey.

Mr. Boyd had registered more than 50 domain names, including other famous names such as alpacino.com. University of Massachusetts professor Dr. Katsh, who founded one of the four accredited cybertribunals, Disputes.org, says his group has handled about 100 conflicts so far. But with the new kinds of disagreements arising every day on the Internet, more courts with wider powers may be needed soon, he says. "I can understand why husbands and wives are trying to drag ISPs into this because they're a point of control," says Dr. Katsh. "But I don't think they really should be drawn in." Agreements signed by everyone registering a domain explicitly state that ICANN may revoke ownership for just about any reason it deems fit. As a result, Dr. Katsh points out, it is not clear whether Internet domain names are actually "property" of anyone other than ICANN. "On the other hand, it is an asset," he says. "A divorce lawyer is going to look at all the property a couple has. Whether or not it's property, it's clearly an asset because it's possibly producing revenue. In that sense, it's no different than any other business." Some conflicts can be handled best by the warring parties, Dr. Katsh says. Scrabble.com was initially contested by two groups, for example. Both had legal rights to the name —one for the United States and the other for overseas. That Web site is now shared by the two corporations and allows Web visitors to choose their destination at the main address.

Identical trademarks

The practice of registering personal sites as first-name-last-name.com has also produced bickering. For example, one Sean Matthews is fighting with another Sean Matthews over the registration of seanmatthews.com because one has established an adult site using that domain name. "We haven't come to terms that, in the physical world, lots of people can have identical trademarks," says Dr. Katsh.

To keep state courts from being burdened with lawsuits stemming from those cases, Dr. Katsh says, ICANN is working on plans for expanded cybertribunal powers. "All in all, I don't think we've handled all this very well," he says. "Cyberspace was supposed to be this huge, almost infinite space and almost infinite capacity. And we're carving it up into 20 million little fiefdoms. "There's no reason why we shouldn't feel comfortable changing and expanding the procedures with the growth of all these problems."

Staff writer Doug Bedell can be reached at dbedell@dallasnews.com.

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