It has gotten back to me that some people are pointing to that post as saying that ANY use of a WHOIS privacy service “is illegal.” Nothing could be further from the truth.
There are, in fact, a whole host of reasons to use a WHOIS privacy service. Some individuals who host their own websites may wish to use such a service because, despite having terms of service to the contrary, some marketers choose to mine WHOIS data to fill their lists. Some people have created sites critical of some group, organization, county, or idea and don’t want to be the recipient of hate mail or a visit by the local jackbooted constabulary.
But none of the reasons to use a WHOIS privacy service include email marketing. You have to take ownership of your program within your company, you need to take ownership of your program facing the rest of the world too.
The 9th Circuit’s decision did not make the use of WHOIS privacy services illegal in all cases. It was a case that revolved around the use of email in a CAN-SPAM Act context. The statement that it made (“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.’”) was made within that context. Thus it was a statement about the intersection of WHOIS privacy services and “material falsification” in a CAN-SPAM Act context.
The statement seems clear and direct, so don’t use a WHOIS privacy service on domains that you are using in your email campaigns. But, don’t make the statement more broad than was intended.