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Use Private Domain Registration And Go To Jail

The 9th Circuit opinion in USA v. Kilbride1 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 portion of the CAN-SPAM Act 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 several providers’ various domain privacy services. As Laura points out, it’s one of the things that identifies you as a spammer.2 And given this pronouncement by the 9th Circuit, it’s probably also 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, your attempt to hide behind the service becomes a violation in and of itself.

Hat Tip: Thomas O’Toole3

Footnotes

  1. US v. Kilbride, 584 F. 3d 1240 (2009). ↩︎
  2. Laura Atkins, How to Be a Spammer, Word to the Wise (Feb. 20, 2008), https://wordtothewise.com/2008/02/how-to-be-a-spammer/ (last visited Nov 4, 2009). ↩︎
  3. TechLaw: Ninth Circuit: Obscenity in E-Mail Messages Judged by National Community Standards, (2009), https://web.archive.org/web/20091107015439/http://pblog.bna.com:80/techlaw/2009/10/ninth-circuit-obscenity-in-email-messages-judged-by-national-community-standards.html (last visited Nov 4, 2009). ↩︎
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Mickey

A recognized leader in the fight against online abuse, specializing in email anti-abuse, compliance, deliverability, privacy, and data protection. With over 20 years of experience tackling messaging abuse, I help organizations clean up their networks and maintain a safe, secure environment.