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11|04|2009 03:12 am EDT

Whois Privacy Is ‘Material Falsification’

by Adam Strong in Categories: Legal Issues

A ruling by the US Court of Appeals 9th Circuit in the case of U.S. v Kilbride has determined that using whois privacy on domains can be considered “material falsification”.  The case involved an appeal on criminal charges of spamming. The ruling in this case provides an the courts opinion on provisions of  the CAN SPAM Act that specifically relate to the use of domains and were argued by the defense as “vague”.

In Title 18 § 1037 Section (d) (2). “Fraud and related activity in connection with electronic mail”  it states that :

For purposes of paragraphs (3) and (4) of subsection (a), header information or 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, an Internet access service processing the message on behalf of a recipient, a person alleging a violation of this section, or a law enforcement agency to identify, locate, or respond to a person who initiated the electronic mail message or to investigate the alleged violation.

The defendants in this case were convicted under 18 U.S.C. § 1037(a)(3) and (a)(4) and argued that the terms “impair”, “materially falsify” and “conceal” in that code are vague.  The court however pointed out that ““When Congress does not define a term in a statute, we construe that term according to its ordinary, contemporary, common meaning.”  The court made it clear in their ruling that the defendants use of private whois information was “materially falsified”.

“. . . private registration for the purpose of concealing the actual registrant’s identity would constitute “material falsification.

Defendants assert that many innocent people who privately register without the requisite intent may be subject to investigation for violation of § 1037 until their intent can be determined, allowing for abuse by enforcement authorities. This may be so, but it does not make the statute unconstitutionally vague.”

“It should have been clear to Defendants that intentionally falsifying the identity of the contact person and phone number for the actual registrant 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 § 1037.”

The ruling doesn’t make use of whois privacy illegal. However coupling the use of privacy services with an allegation of intentional spamming and you’ve got the cards stacked against you.

[Source : TechLaw blog]

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