Slashdot Mirror
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.'"
Ingredients for SPAM still can legally remain hidden
A spammer's entire business plan can be summed up a "material falsification", can't it?
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.
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.
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.
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.
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.
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
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.
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