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Court Rules WHOIS Privacy Illegal For Spammers

Posted by kdawson on from the masks-on-the-ground dept.

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.'"

25 of 169 comments (clear)

  1. SPAM contents still a secret by Orga · · Score: 4, Funny

    Ingredients for SPAM still can legally remain hidden

    1. Re:SPAM contents still a secret by Anonymous Coward · · Score: 4, Funny

      Making SPAM:

      1) ???
      2) ???
      3) ???
      4) Profit

    2. Re:SPAM contents still a secret by Captain+Splendid · · Score: 5, Insightful

      Meh, the whole article is irrelevant. Once it gets to the Supreme Court, they'll just say we're restricting spammers' freedom of speech.

      --
      Linux, you magnificent bastard, I read the fucking manual!
    3. Re:SPAM contents still a secret by mcgrew · · Score: 3, Funny

      You missed a few steps:

      1. SPAM
      2. eggs
      3. ????
      4. sausage
      5. ????
      6. SPAM
      7. SPAM
      8. profit

      "BUT I DON'T LIKE SPAM!!!!"
      "That's OK dear, I'll have some of yours."

      --
      Free Martian Whores!
    4. Re:SPAM contents still a secret by BobMcD · · Score: 3, Insightful

      In fact, harassment is completely subjective. It's not good to put subjective words into law. If I punch you in the face and cause visible damage, that is objective. If I take something that you can prove is yours, that's objective. But what about "harassment"? Some people are completely intolerant and consider themselves "harassed" at the drop of a hat. Others are far more tolerant. Still others never feel "harassed".

      Thus the concepts of 'judge' and 'jury'. All human behavior will be open to interpretation, and context is vitally important to any judicious application of law. Also, the laws use their own guidelines for what given words mean, and due to their depth these are likely far less ambiguous than dictionary definitions wind up being.

      In short you're mixing up English language with legalese, and that is why you're confused.

  2. Material falsification? by fatherjoecode · · Score: 3, Insightful

    A spammer's entire business plan can be summed up a "material falsification", can't it?

    1. Re:Material falsification? by suso · · Score: 2, Insightful

      A spammer's entire business plan can be summed up a "material falsification", can't it?

      Like I always say, marketing is the art of making something seem better than it really is.

  3. This is a good step but by JoshuaZ · · Score: 3, Insightful

    Spam is ultimately an economic problem. As long as spam remains highly profitiable spamming will continue. To deal with the spam problem we need to take a multi-faceted approach that includes a variety of both economic and other attacks. Stricter punishments for spamming, punishment for ISPs that are particularly bad, better education of people who answer spam, better use of whitelists, blacklists and greylists are all techniques that can help. Every technique has problems. Hence the standard Slashdot response with the checkboxes. However, although each has flaws, together they can be very effective. In that regard, this is sort of like cancer. Cancer is a very complicated diseases. However, by careful application of multiple medical techniques (radiation, surgery and chemotherapy being big ones) we've substantially cut down on cancer deaths. Sure, cancer still kills. But many forms are far less deadly. Childhood leukemia was a death sentence 40 years ago and now has a high survival rate. We need the same sort of combined approach to spam. This won't eradicate spam. But it will reduce it to more manageable levels.

  4. Hmmm... by McGregorMortis · · Score: 5, Interesting

    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.

    1. Re:Hmmm... by Drethon · · Score: 3, Insightful

      It seems kind of like DRM (in an indirect way). Anything created to stop illegal activities will not slow down the crooks and instead end up making legitimate users pay more...

  5. The first amendment is dead and buried... by AlexLibman · · Score: 2, Insightful

    The Natural Right to Freedom of Speech is needed precisely for unpopular speech such as "spam" and even "kiddy porn" - a canary in the coal mine for more egregious government assaults on your freedoms!

    It is your responsibility to decide what means you use to communicate with other people, and if you choose to use a ridiculously poorly designed protocol like e-mail then it is your (or your e-mail hosting provider's) responsibility to control who connects to your mail servers and how messages are to be accepted or rejected. There are many better technological solutions out there, and the CAN SPAM bull will only help proliferate the bad technologies at the expense of the good, while also hurting legitimate communication needs, and resulting in a corrupt and inefficient bureaucratic cesspool that will cost tax-victims billions!

    Getting the government involved is the very worst thing you can do, and it has horrifying consequences down the road - spam today, other unpopular speech tomorrow, total tyrannical thought control the day after that!

    1. Re:The first amendment is dead and buried... by JoshuaZ · · Score: 5, Interesting

      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.

    2. Re:The first amendment is dead and buried... by Anonymous Coward · · Score: 5, Insightful

      Censorship is a red herring here.
      Spam isn't "unpopular speech" merely because of what it says.
      Spam is an abuse of a communication channel.
      One more time: It's about consent, not content.

    3. Re:The first amendment is dead and buried... by JoshuaZ · · Score: 3, Interesting

      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.

    4. Re:The first amendment is dead and buried... by spun · · Score: 5, Informative

      Spammers aren't shouting on their own property. They are shouting on mine. They are, in effect, stealing from me.

      There is no such thing as 'natural rights.' Natural rights are a type of con, by asserting your natural rights you are arguing from authority, your assertion that certain rights are 'natural' means it would be unnatural to oppose such rights. In the end, though, natural rights don't matter. The only things that matters are the rights that the majority agree to uphold. If no one agrees with your assessment of what constitutes a natural right, you can whine about it all you like, but it won't change anything.

      You don't have the right to yell 'fire!' in a crowded theater, incite a riot, or deliberately and maliciously spread damaging falsehoods. You don't have the right to lob garbage into my yard, even if that garbage consists of your poetry, written on napkins. In the same vein, you don't have the right to send me unsolicited commercial faxes, or to spam me.

      What kind of ridiculous slipper slope must you concoct to imagine that CAN-SPAM will have 'very dangerous consequences?' Has the law against unsolicited commercial faxing had such consequences?

      --
      - None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
    5. Re:The first amendment is dead and buried... by cromar · · Score: 2, Interesting
      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 :)

  6. Conspiracy/aiding/abetting? by Thaelon · · Score: 2, Interesting

    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?

    --

    Question everything

  7. Problem by girlintraining · · Score: 2, Interesting

    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.

    --
    #fuckbeta #iamslashdot #dicemustdie
    1. Re:Problem by gclef · · Score: 3, Informative

      It's not that privacy is illegal...it's that privacy + spamming = violation. CAN-SPAM, for all its toothlessness, requires valid contact information for the domains involved in mass emails, so using anonymized WHOIS entries is right out if you're sending mass emails. This is, I think, perfectly fine. If you're going to be contacting millions of people, it's only fair that they should be able to contact you back.

      That says noting about your ability to run a small business with anonymized WHOIS off a small DSL line...as long as you're not sending mass emails around, your WHOIS anonymity will never run afoul of the spam laws.

    2. Re:Problem by Dunbal · · Score: 2, Informative

      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?

      From the header:

      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.

      Cough. You were saying?

      --
      Seven puppies were harmed during the making of this post.
  8. NOT just an economic problem by Alwin+Henseler · · Score: 2, Interesting

    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.

  9. Clean GoDaddy - Clean 80% SPAM scum by weaponx71 · · Score: 3, Interesting

    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.

  10. Another simplistic libertarian answer by spun · · Score: 5, Insightful

    In libertarian la-la land, there is one freedom: to do whatever the hell I want without interference. But freedom isn't that cut and dried. My right to swing my fist ends at your face. Even on my property, I don't have the right to scream at the top of my lungs at 4 in the morning, because that impacts your freedoms.

    Freedom isn't a simple thing. It isn't defined by imaginary and arbitrary natural rights. It is agreed upon and upheld by civilized people. For every freedom gained, there is a corresponding freedom lost, and so it is up to the group to decide what freedoms they are willing to trade for other more important freedoms. I, for instance, am willing to trade the freedom to scream at the top of my lungs at 4am, for the freedom to get a peaceful nights sleep.

    And I don't give a rat's ass what YOU think your 'natural rights' entitle you to. Come into my neighborhood and start bellowing at 4am, and you will get a visit from the police, who will force you to stop, to protect my freedom. And THAT is as it should be, amongst civilized people.

    Libertarians are akin to preschoolers, in that their idea of freedom is 'yer not the boss of me!' Well, the fact is that if you want to live in civilization, you have to let other people be the boss of you. If you don't like it, there is plenty of desolate wilderness where you can go be as free as you like, by yourself. But you DO NOT get to insert yourself into other people's lives and impose on them, claiming that if they try to stop you they are limiting your freedom. No, YOU are limiting THEIR freedom, and there are more of them than of you, so what they say goes. If you don't like it, well, there's always that lovely wilderness where you can be as free as you like without imposing on others.

    --
    - None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
  11. Conflicting natural rights by spun · · Score: 2, Insightful

    Let me make an analogy that I hope is a bit more clear, and illustrate that, under your definition of natural rights, spam presents a conflict.

    You believe in the freedom to own property, yes? And the freedom of speech. Well, what if I were to scratch 'screw you!' into your car? Which freedom wins out, my freedom of expression, our your freedom to control your own property? Spam is a form of property vandalism, even if it is a form of free expression. And my right to control my property trumps your right to express yourself.

    You seem to be arguing the opposite, so, please let us know where you park your car so we can come exercise our freedom of expression on it.

    --
    - None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
    1. Re:Conflicting natural rights by spun · · Score: 2, Insightful

      Oh, and from experience I can state that my opinions will be shouted down/down modded/kickbanned as quickly on a libertarian / Objectivist / Anarcho-Capitalist forum as yours are here. As I have said before, libertarians only care about their own freedom.

      Libertarianism / Objectivism / Anarcho capitalism: What are three philosophies that boil down to 'I've got mine, so screw you,' Alex?

      --
      - None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton