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As reported on Spamsuite, the 9th Circuit opinion in USA v. Kilbride, (9th Cir., 2009) has been released. This is primarily an obscenity case against the defendants for sending pornographic spam email. But, it also includes a challenge to 18 U.S.C. § 1037 on vagueness grounds.
18 U.S.C. § 1037 is the part of the CAN-SPAM Act that deals with fraud and falsity in headers. And, from appearances, the Defendants were using false information in their registration. One of their arguments (and the Court’s response to it) appears as follows:
Defendants also argue that the definition of “material falsification” renders § 1037 unconstitutionally vague specifically as to whether it would criminalize private registration of a domain name. As testified to at trial, private registration is a service that allows registration of a domain name in a manner that conceals the actual registrant’s identity from the public absent a subpoena. We fail to perceive any vagueness on this point. Based on the plain meaning of the relevant terms discussed above, private registration for the purpose of concealing the actual registrant’s identity would constitute “material falsification.”
(from page 29 of the PDF)
So, what does this mean for the email marketer? Don’t use private registration services like Domains By Proxy or the various domain privacy services offered by several providers. As Laura points out, it’s one of the things that identifies you as a spammer. And given this pronouncement by the 9th Circuit, it’s probably also now a violation of your Email Service Provider’s rules of use or terms of service.
Not only does it identify you as a spammer, but if the FTC or the US Attorney’s Office starts reviewing your practices with an eye toward prosecuting you for CAN-SPAM violations then your attempt to hide behind the service then becomes a violation in and of itself.
Hat Tip: Thomas O’Toole
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This post was mentioned on Twitter by evan_burke: hat tip @spamtacularcom http://bit.ly/1J1p3Y...
[...] This post was mentioned on Twitter by Al Iverson, Evan Burke and Mickey Chandler, Domainers Magazine. Domainers Magazine said: RT @aliverson RT @spamtacularcom New blog post: Use Private Domain Registration and Go to Jail? http://bit.ly/1J1p3Y [...]
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[...] Chandler, over at Spamtacular notes a recent decision in a CAN-SPAM case which cites 18 U.S.C. § 1037 as one of the laws [...]
[...] Use Private Domain Registration and Go to Jail?. This post was a commentary on USA v. Kilbride, (9th Cir., 2009), which featured a section which, if I read it correctly, indicates that use of Domain Privacy services by marketers may well violate the CAN-SPAM Act. [...]
[...] seems to have been a bit of confusion over a previous post I’ve made over the use of WHOIS privacy services, like Domains By [...]
If private registration becomes illegal all that will happen is that people who want to conceal their identities will just register using aliases or get overseas agents to register on their behalf out of the reach of American law.
Just because you use a private registration service does not make you a spammer. Lots of people just want to protect themselves from the risks of leaving your personal information on show.
I've got a bunch of top level domains registered in random names from the phone book and random addresses from Google maps. It saves me the cost of private registration and if the laws change, I'm pretty well covered.