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 of 2003 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 Atkins 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.