Looks like using WHOIS Privacy in conjunction with domain registration found in violation of the CAN-SPAM act now constitutes a material falsification under United States Federal Law.

For those who do not know, the CAN-SPAM act prohibits false or misleading transmission of information, deceptive headers (forging/falsifying) and requires all e-mail solicitations to provide an easy opt-out method and be labeled as an advertisement, including the senders physical postal address. Commercial e-mails in violation of these provisions or others, such as falsified registration information, are subject to fines of upto $11,000 for each unsolicited e-mail sent.

The decision was handed down by the Court of Appeals for the 9th Circuit in the United States in the case United States vs. Kilbride in which the defendants were convicted under the CAN-SPAM act for criminal charges of intentionally spamming.

The defense was playing on the wording of the act which states in part, that "registration information is materially falsified if it is altered or concealed in a manner that would impair the ability of the recipient of the message...to identify, locate or respond to a person who initiated the electronic mail message..." The basic argument was that as the terms "impar", "materially falsify" and "conceal" were not defined in the statute, they should be automatically considered unconstitutionally vague.

The court responded to this ploy by clarifying that "when Congress does not define a term in a statute, we construe that term according to its ordinary, contemporary, common meaning.” It was then made expressly clear that the defendants' use of WHOIS privacy functions/service in this case was considered a material falsification of registration information under the act.

The court declared that, "It should have been clear to the defendants that intentionally falsifying the identity of the contact person and phone number [through WHOIS privacy] for the actual registrant information 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 the CAN-SPAM act.”

SRC: http://www.ca9.uscourts.gov/datastor...8/07-10528.pdf