Jan 152010
 January 15, 2010  Posted by  Court, Online

Ryan Sadler writes:

A recent decision by the Court of Appeals for the 9th Circuit has determined that using WHOIS privacy on domains may be considered “material falsification” under federal law. The defendants in US v. Kilbride (9th Cir., 2009) were convicted under the CAN-SPAM Act in a case that involved criminal charges of intentional email spamming.


The CAN-SPAM act states that “registration information is materially falsified if it is altered or concealed in a manner that would impair the ability of a recipient of the message…to identify, locate, or respond to a person who initiated the electronic mail message…” The defendants argued that since the terms “impair”, “materially falsify” and “conceal” are not defined in the statute they should be considered unconstitutionally vague. The court responded to the defendants’ assertion by clarifying that “when Congress does not define a term in a statute, we construe that term according to its ordinary, contemporary, common meaning.” The court then made it clear in their ruling that the defendants’ use of private WHOIS information in this case materially falsified the registration information. The court declared that “It should have been clear to the defendants that intentionally falsifying the identity of the contact person and phone number [through WHOIS privacy] for the actual registrant information constitutes intentionally decreasing the ability of a recipient to locate and contact the actual registrant, regardless of whether a recipient may still be left some avenue to do so. We therefore conclude defendants had notice that their conduct violated the CAN-SPAM act.”

Read more on Sedo.

Hat-tip, Fergie’s Tech Blog.

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