How To Read A US Court Decision

1. How To Read A US Court Decision ….or not

2. U.S. v. Kilbride, (9th Cir. Oct. 28, 2009)http://www.ca9.uscourts.gov/datastore/opinions/2009/10/28/07-10528.pdf) The Law In Question: 18 U.S.C. § 1037 Email Fraud Whoever… 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….

3. Facts of Case Porn Spammer convicted of Email Fraud Used FALSE WHOIS Data: “The registrant for each of the emails was listed as Ganymede Marketing. The correct physical address for Ganymede was listed, but the contact person and phone number listed were false. The email listed in the registration was […] invalid.”

4. What Happened Convicted in Arizona federal court Appeal to Ninth Circuit Court of Appeals - "Facial Challenge" of whether the law is Constitutional under First Amendment - Defendant Argued That Hypothetical Lawful Speech Was Rendered Criminal By The Law

5. The Hypothetical Argument: “Defendants also argue that the definition of ‘material falsification’ renders § 1037 unconstitutionally vague specifically as to whether it would criminalize private registration of a domain name. As testified to at trial, private 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.”

6. The Court’s Answer: “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.”

7. This may be so, but it does not make the statute unconstitutionally vague. As we recently noted, “ ‘[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 § 1037 exists may prove difficult, this does not demonstrate that the concept of intent as used in the statute is an entirely indeterminate, subjective one. Hence, the problem Defendants identify is irrelevant to the vagueness inquiry.

8. Conclusions • Legitimacy of WHOIS privacy was not before the court on the facts of the case. It was raised as a hypothetical. • The hypothetical assumed satisfaction of the other elements of the law in question. • Answering the hypothetical, the court noted that intent to conceal identity (as opposed to obtaining conditional privacy which such services provide) would be required for WHOIS privacy to be a component of material falsification. • Even with use of WHOIS privacy, the relevant inquiry would still be “whether the requisite intent for culpability under [the email fraud law] exists”

9. Questions: John Berryhill, Ph.d., Esq. 4 West Front St. Media, PA 19063 john@johnberryhill.com (610) 565-5601 (267) 386-8115 fax This document is provided for informational purposes only. The author provides no representations or warranties, express or implied, that this information is correct, complete, or up-to-date. Nothing herein constitutes legal advice or formation of an attorney/client relationship.