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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.'"
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.
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.