The Ninth Circuit Court of Appeals, in US v. Kilbride, No. 07-10528 (9th Cir. 2009), upheld fraud and conspiracy charges arising from the defendant’s sending of spam emails containing advertisements for pornographic materials. Key to this ruling was the fact that the spam emails contained false and non-functioning email addresses in the “From” field.
More interesting, however, is the fact that the defendant’s use of a privacy service to block access to the Whois information for the domain names they used for such emails constituted “materially falsified” information as defined under the CAN SPAM Act. Specifically, the Court stated “It should have been clear to Defendants that intentionally falsifying the identity of the contact person and phone number for the actual registrant constitutes intentionally decreasing the ability of a recipient to locate and contact the actual registrant, regardless of whether a recipient may still be left some avenue to do so. We therefore conclude Defendants had notice that their conduct violated.”
You may remember that the New York Federal District Court recently sentenced Alan Ralsky, the self-proclaimed “King Of Spam”, and others to prison terms of several years for their participation in a pump-and-dump stock-trading scheme in which the defendants would artificially and temporarily inflate the price of a given stock by the use of spam emails touting that stock.
These cases raise the questions of whether the Federal government is taking a more aggressive approach in its prosecution of spam purveyors within its jurisdictional reach and also what, if anything, this could mean for civil domain enforcement actions. Even if not subject to the criminal terms of CAN SPAM, cybersquatters on the defensive side of UDRP and ACPA actions could find themselves subject to this more aggressive approach to enforcement.
This could be good news for brand owners since a high percentage of spammers, cybersquatters and others rely on private or false Whois information in their attempts to avoid being held accountable for their illegal actions.
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