CircleID reports that a recent 9th Circuit Court of Appeals decision has held that WHOIS privacy protection can be considered a "material falsification" under the CAN-SPAM Act. The CAN-SPAM Act, which prohibits deceptive email headers and subject lines, states that "registration information is materially falsified if it is altered or concealed in a manner that would impair the ability of a recipient of the message…to identify, locate, or respond to a person who initiated the electronic mail message…." The 9th Circuit, in US v. Kilbride, stated that the use of a WHOIS privacy protection service to hide the identity of a domain name registrant constitutes a violation of the CAN-SPAM Act because it prevents an end-user from contacting the owner of a domain name to opt-out of email communications.
While the full import of this decision is still unclear, it is safe to say that this decision is one that website owners should take very seriously, especially if the website distributes marketing messages through email or telephone lists. If you are a website owner or domainer who seeks advice on website agreements, website compliance, the CAN-SPAM Act, or Internet law, contact one of our expert Internet lawyers today at 866.936.7447.