At Sedo, Ryan Sadler reports on a recent decision by (pdf) the Ninth Circuit Court of Appeals that affects privacy in WHOIS (this lists registration and contact information for holders of Internet domain names):
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. […] Commercial emails that use false or misleading headers, or violate other CAN-SPAM provisions, such as falsified registration information, are subject to fines […]
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. […]
Although the ruling does not make use of WHOIS privacy illegal, it does serve as a clear message from the court that coupling the use of privacy services with intentional spamming will likely result in a violation of the CAN-SPAM act. This is an important decision that members of the domain community should refer to prior to utilizing a privacy shield.