A CAN-SPAM court decision may hurt the private domain registration business.

Spammers hiding behind private registration of domain names to spread junk email received a slap in the face recently by a federal district court in California. In their attempt to nullify the U.S. CAN-SPAM Act the garbage pedlars argued, among other things, that the law was unconstitutionally vague because anyone trafficking in private domain registrations could be held liable for materially falsifying an identity under the statute.

Ironically, private domain registrations were created to protect domain owners from spammers, scammers, telemarketers and other unsavory types. Under the process, domain owners who want to keep their personal  information private enlist another company, a proxy registrar, to register their domain for them. The domain owner retains control of the domain, but for public purposes, such as listing in the WHOIS directory, the proxy’s contact information is listed as the owner of the domain. The rub to the process, though, is that anyone can use it–even spammers seeking to hide ownership of their domains. It’s a  pair of such spammers that found themselves  appealing their prosecution before the Ninth Circuit Court of Appeals.

The case, U.S. v. Kilbride, involved a pair of porn spammers operating through a company based in the small African nation of Mauritius. Their spam, which generated 662,000 complaints with the U.S. Federal Trade Commission, violated CAN-SPAM in a number of ways including forged headers, fake email addresses and phony contact information. A jury, after a three week trial, convicted the defendants of criminal CAN-SPAM violations and other charges. One smut circulator received a 6.5 year prison term; the other, five years in the Big House.

In their arguments before the court, the skin merchants asserted that CAN-SPAM is too vague in its definition of material falsification to meet constitutional standards because it criminalizes private registration of domain names. The court, however, wasn’t buying that contention. “We fail to perceive any vagueness on this point,” the judges opined.

Passed in 2003, CAN-SPAM provides penalties for anyone, among  other things, who “materially falsifies header information in multiple commercial electronic mail messages and intentionally initiates the transmission of such messages” or “registers, using information that materially falsifies the identity of the actual registrant, for five or more electronic mail accounts or online user accounts or two or more domain names, and intentionally initiates the transmission of multiple commercial electronic mail messages from any combination of such accounts or domain names…”

The court also rejected the notion that the material falsification definition allows innocent people to be investigated for violating the law until their intent can be determined. That, the spammers asserted, invited law enforcement officials to abuse the law. “This may be so, but it does not make the statute
unconstitutionally vague,” the court said.

“As we recently noted,” it continued, ” ‘[w]hat renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is.’”

“While determining as a factual matter whether the requisite intent for culpability under [CAN-SPAM]exists may prove difficult, this does not demonstrate
that the concept of intent as used in the statute is an entirely indeterminate, subjective one,” it added. “Hence, the problem Defendants identify is irrelevant to the vagueness inquiry.”

Of course, the Ninth Circuit is only one court, and its decisions don’t necessarily carry any weight outside its jurisdiction. Another court could very well find that CAN-SPAM’s falsification provisions are unconstitutional and send the whole issue to the Supreme Court.

For now, however, the question remains will court decisions that discourage netizens from using private registrations or registrars from offering them make a dent in the spam volumes which are consistently over 90 percent of all email on the Internet? Probably not. If the government gets tough in probing private registrations, it will probably discourage the innocent from engaging in the practice  while Black Hats, who live by subterfuge, will continue to keep it in their bag of dirty tricks.

One thing is certain, if the courts continue to crackdown on private registrations, it won’t favorably impact the registrars who turn a buck on them. As one attorney waggishly observed in his blog, “I don’t see the domain name proxy business as a growth industry.”