Court Rules That Using Domain Registration Privacy Services Represents 'Material Falsification'

from the that-doesn't-seem-right dept

Lots of people use private registration services for domain names, that lets them register a domain name while keeping their own identities private. There are plenty of legitimate reasons to do so: they don't want spam or they want to keep the identity of the site owners anonymous. However, in a recent spam lawsuit, the Ninth Circuit court of appeals has said that using such a service is "material falsification" of information:

[P]rivate registration is a service that allows registration of a domain name in a manner that conceals the actual registrant's identity from the public absent a subpoena. We fail to perceive any vagueness on this point. Based on the plain meaning of the relevant terms discussed above, private registration for the purpose of concealing the actual registrant's identity would constitute "material falsification." Defendants assert that many innocent people who privately register without the requisite intent may be subject to investigation for violation of § 1037 until their intent can be determined, allowing for abuse by enforcement authorities. This may be so, but it does not make the statute unconstitutionally vague.

While CAN SPAM requires a combination of both material falsification and intent to send spam, it does open up some questions about potential legal problems for anyone who uses such a private registration service in a variety of lawsuits (if those lawsuits are in the Ninth Circuit, of course). The court does seem to admit that this could cause problems, but the job of the court isn't to stop those problems, just to interpret the law.

Separately, in the same lawsuit, the court ruled that the appropriate "community" for judging obscenity standards in email is the "national community" rather than the local community. I have enough problems with the whole "community standards" method of judging "obscenity" in the first place (well, I have trouble with "obscenity" laws entirely), but if you have to have them, it does seem that a national standard makes more sense than a local standard when it comes to email that could go to anyone in any community. As Thomas O'Toole notes in his writeup, the ruling is a bit of a mess, and should keep First Amendment lawyers busy (though, the same is true of any obscenity laws...).

Filed Under: domain names, email, material falsification, private registration