Court Rules WHOIS Privacy Illegal For Spammers

Unequivocal writes "Spammers hiding behind a WHOIS privacy service have been found in violation of CAN-SPAM. It probably won't stop other spammers from hiding (what can?), but at least it adds another arrow in the legal quiver for skewering the bottom feeders. Quoting from the article: '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... 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.'"

Comments

Hmmm...

[McGregorMortis]

WHOIS privacy was created in the first place to protect us from spammers (the WHOIS database being ripe for email address scraping). Then the spammers took advantage of it to protect themselves from justice.

It seems like there's some kind of insightful point to be made here, but I'm not sure what it is.

Re:The first amendment is dead and buried...

[JoshuaZ]

It isn't censorship to restrict time, plane and manner of speech. Thus, for example, saying you can't scream your views at 2 AM in a residential neighborhood isn't censorship by any reasonable definition. Similarly, anti-spam laws are not creating any free speech problem as long as they focus on the unsolicited nature of the message rather than the content. Moreover, there's a classical philosophical distinction between commercial and non-commercial speech (otherwise we wouldn't be able to restrict people from false advertising for example). Claiming that spam should be protected under free speech might feel like a fine, pro-free speech absolutist position to take, but really it is just not having any understanding of what we mean when we talk about free speech rights.

Conspiracy/aiding/abetting?

[Thaelon]

Couldn't the WHOIS service, by hosting spammers, be held liable for criminal conspiracy or aiding and abetting?

Or at least investigated to determine if they were knowingly protecting spammers under one or both of those charges?

Problem

[girlintraining]

So what we're doing is eschewing personal privacy in exchange for... corporate privacy? It used to be years ago, I could setup a web server on a xDSL line from home and run a small business off of that. Of course, few people want to post their cell phone number (often their only number) online, or any other method of direct contact. Amongst other things, that would invite spam. So along come these anonymization services so we can have an online presence without giving up our privacy -- and now that's been declared illegal? So domains owned by individuals or sole-proprietorships are screwed, but corporations have little to worry about: They can just assign some random techie to be the contact for their domain.

Re:The first amendment is dead and buried...

[JoshuaZ]

But we do have such contractual obligations. They are just implicit. Move into a city and you are subject to their laws including the ones about noise levels. Whether I explicitly sign a contract or not is simply window dressing.

NOT just an economic problem

[Alwin Henseler]

Spam is ultimately an economic problem. As long as spam remains highly profitiable spamming will continue.

I won't assume this to mean a 'silent approval' for spamming, but it does sound you take this as a given. IMHO that is not true. There are other reasons why spam remains a problem:

• Because e-mail (and "from:" field in particular) is easily faked. If public key authentication and strong encryption were the norm, it would be impossible to spam on the current scale with fake "from:" info and bullshit messages. Spam with valid security envelope would directly point back to the responsible perps, or a very recently compromised machine/account. Upon compromise, most owners would publish a new public key. It would be easy to ignore/blacklist users that don't do so. Messages encoded with a compromised key would have an invalid security envelope.
• Often it is difficult to connect an e-mail address to an actual person or organization. When compromised, e-mail addresses are easily discarded, and new ones created. This is very related to the 1st point. If untrue, past actions would stick to a person or organization much longer, and be much more damaging when abused (read: promoting careful use over abuse).
• It's so easy to compromise an average computer. Basically: use any system that isn't updated to the latest & greatest (for whatever reason), browse the wrong website, open the wrong document, or download & run an executable from the wrong place (any of these actions will do), and you're hosed. And a market dominated by the least secure option doesn't help.
• Once the spammer is known, it's often difficult to get the person convicted because he/she is abroad, and the governments involved aren't co-operating well. The lack of strong authentication makes it harder to prove things. When a conviction happens, it's the spammer not the company pushing pills that pays.
• Costs for sending, receiving & filtering spam are paid by parties other than the ones spamming.

Basically, a combination of technical, political and legal reasons, beside the economic ones. Spam continues because the parties profiting from it aren't held accountable.

Clean GoDaddy - Clean 80% SPAM scum

[weaponx71]

I swear that whenever I take the time to back track any SPAM messages I get, and I don't mean all the Viagra ads, but the ones that I get from a subject that I might have interest in but I know I never did business with them or requested anything from them. They are hiding out at GoDaddy. Most don't have the unsubcribe link, most just don't work. I have only come across ONE company that did anything about an emailing I got and that was Google. Typical online marketing email saying you can make tens of thousands of dollars doing nothing per month. Just buy their $97 advertising "secrets" and you will have a mansion and a Ferrari in months. I complained to Google since the email didn't have an unsubsribe link or removal link. They must have done something or sent them something because I got another email asking me why I turned them in and that they weren't SPAM. I politely told them they were whack and have since blocked their domains and emails at my web hosting level. When I try this with GoDaddy. I either get nothing in reply or a canned email from GoDaddy stating they don't get inbetween a business and it's customers about money owed or services not renedered. WHAT? I tell them they have a violation of their own User Agreement and they spew back nonsense. Why would they want to do anything or cut off anything that is making them money? We need to have more control given back to the normal person, and heck I have a small company and even going through that I can't get ISP or Registrars to do anything worth while. If you aren't making THEM a lot of money, you just simply don't matter.

Re:The first amendment is dead and buried...

[cromar]

To combat harassing, commercial, and many times fraudulent speech is a far cry from attacking private, non-commercial speech.

I can only imagine next year it could include P2P users and eventually anyone doing something abnormal like running tor

To put it lightly... if you really believe that you need to get out of the basement more :)