Case 3:18-cr-04683-GPC Document 154 Filed 02/28/20 PageID.1350 Page 1 of 19
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`UNITED STATES OF AMERICA,
`Plaintiff,
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
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` Case No.: 18-CR-4683-GPC
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`ORDER DENYING MOTION TO
`DISMISS THE CAN-SPAM ACT
`COUNTS 1 AND 6 THROUGH 10
`
`(ECF No. 69.)
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`v.
`JACOB BYCHAK, et al.,
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`Defendants.
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`
`
`On March 15, 2019, Defendants Jacob Bychak, Mark Manoogian, Mohammed
`Abdul Qayyum, and Petr Pacas (“Defendants”) filed a motion to dismiss Counts 6
`through 10 of the Indictment charging violations of 18 U.S.C. §1037, on the ground that
`subsection (a)(5) is void for vagueness – both facially and as applied to the instant facts.
`(ECF No. 69 at 3.) Defendants also argued that Counts 6 through 10, and Count 1, failed
`to state an offense. (Id.)
`Following a full briefing and hearing schedule, the Court DENIES the motion. The
`Court finds that subsection (a)(5) of the CAN-SPAM Act is not vague on its face and that
`Defendants’ as-applied challenge is premature at this time. The Court further finds that
`the Indictment does not fail to state an offense with respect to Counts 1 and 6 through 10.
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`Case 3:18-cr-04683-GPC Document 154 Filed 02/28/20 PageID.1351 Page 2 of 19
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`I.
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`Background
`Procedural Background
`A.
`Defendant’s initial motion to dismiss was filed on March 15, 2019. (ECF No. 69.)
`On March 29, 2019, the Government filed a response. (ECF No. 75.) On April 12, 2019,
`Defendants filed a reply. (ECF No. 84.) The Court heard the motion on April 30, 2019.
`(ECF No. 100.) After the hearing, on July 10, 2019, the Government filed a supporting
`declaration by Mr. John Curran, Chief Executive Officer of the American Registry for
`Internet Numbers, Ltd. (“ARIN”). (ECF No. 107-1.)
`On August 20, 2019, Defendants filed a counter-declaration by Mr. Marc A.
`Lindsey, President and co-founder of Avenue4 LLC. (ECF No. 116.) The Government
`filed a response to Defendants’ counter-declaration on October 27, 2019, and Defendants
`filed a reply on September 4, 2019. (ECF Nos. 122, 127.) On October 24, 2019, the Court
`held a second hearing on Defendants’ vagueness challenge and took the motion under
`submission. (ECF No. 141.)1
`The Indictment
`B.
`From December 2010 to September 2014, Defendants allegedly conspired with
`each other to commit wire fraud and felony electronic mail fraud. (ECF No. 1,
`Indictment.) Defendants are each charged in all ten counts of the Indictment as follows:
`• Count 1: Conspiracy to commit offenses against the United States,
`specifically, wire fraud (18 U.S.C. § 1343) and electronic mail fraud (18
`U.S.C. § 1037(a)(5) and (b)(2)(C)), in violation of 18 U.S.C. § 371;
`• Counts 2–5: Wire fraud, in violation of 18 U.S.C. § 1343; and
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`1 Given the uncontested nature of the background information provided in the Parties’ competing
`declarations, the Court finds that it is unnecessary to consider the declarations in full to address the
`issues raised by the parties.
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`Case 3:18-cr-04683-GPC Document 154 Filed 02/28/20 PageID.1352 Page 3 of 19
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`• Counts 6–10: Electronic mail fraud, in violation of 18 U.S.C. § 1037(a)(5)
`and (b)(2)(C), and 18 U.S.C. § 2.
`As alleged in the Indictment, Defendants’ scheme entailed: (1) Defendants
`identifying or paying to identify blocks of Internet Protocol (IP) addresses called
`“netblocks” that were registered to others and appeared to be inactive; (2) Defendants
`creating and sending letters to Internet hosting companies fraudulently stating the letter
`bearer had been authorized by the registrants of the inactive IP addresses to use the IP
`addresses; and (3) Defendants using the fraudulently acquired IP addresses to send
`commercial email (“spam”) messages. (ECF No. 1, Indictment at ¶ 2.)
`C. The Statute Penalizing Electronic Mail Fraud (18 U.S.C. § 1037)
`Counts 6 through 10 allege violations of 18 U.S.C. § 1037(a)(5). That statute
`provides, in pertinent part, as follows:
`Whoever, in or affecting interstate or foreign commerce, knowingly . . . falsely
`represents oneself to be the registrant or the legitimate successor in interest to
`the registrant of 5 or more Internet Protocol addresses, and intentionally
`initiates the transmission of multiple commercial electronic mail messages
`from such addresses, or conspires to do so . . . shall be punished.
`18 U.S.C. § 1037. This statute codifies the criminal penalties of an act entitled the
`Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the
`“CAN-SPAM Act” or “the Act”), 15 U.S.C. § 7701, et seq.
`In enacting the CAN-SPAM Act, Congress made several findings about
`commercial electronic mail, including the following:
`(3) The receipt of unsolicited commercial electronic mail may result in costs
`to recipients who cannot refuse to accept such mail and who incur costs for
`the storage of such mail, or for the time spent accessing, reviewing, and
`discarding such mail, or for both . . .
`(6) The growth in unsolicited commercial electronic mail imposes significant
`monetary costs on providers of Internet access services, businesses, and
`educational and nonprofit institutions that carry and receive such mail . . .
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`Case 3:18-cr-04683-GPC Document 154 Filed 02/28/20 PageID.1353 Page 4 of 19
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`(7) Many senders of unsolicited commercial electronic mail purposefully
`disguise the source of such mail.
`15 U.S.C. § 7701(a)(1)–(7). Because of these and other findings, Congress determined:
`(1) there is a substantial government interest in regulation of commercial
`electronic mail on a nationwide basis;
`(2) senders of commercial electronic mail should not mislead recipients as to
`the source or content of such mail; and
`(3) recipients of commercial electronic mail have a right to decline to receive
`additional commercial electronic mail from the same source.
`15 U.S.C. § 7701(b). Congress also recognized that spam posed an additional problem,
`namely, that those who send it disguise or falsify header, domain, and registration
`information to avoid being identified. S. Rep. No. 108-102, at 4, 2004 U.S.C.C.A.N.
`2348, 2351 (“Compounding these problems is the fact that nearly all spam being sent
`today is considered untraceable . . . Although many ISPs try to locate spammers . . .
`spammers can rather easily disguise their whereabouts, quickly move to other ISPs, or set
`up websites at new domains.”)
`Internet Protocol (“IP”) Addresses and American Registry of Internet
`D.
`Numbers (“ARIN”)
`“Each device connected to the global Internet needs a numeric identifier, an
`‘Internet Protocol’ address, or simply ‘IP address,’” that is unique and “not used by any
`other device on the network.” Ben Edelman and Stephen M. Ryan, Guidance from ARIN
`on Legal Aspects of the Transfer of Internet Protocol Numbers, BUSINESS LAW TODAY,
`https://www.americanbar.org/publications/blt/2013/05/03_edelman.html (May 2013). To
`ensure IP uniqueness, the U.S. Government established an Internet Registry System. Id.
`An Internet Registry “carefully manages allocation and registration of IP addresses.” Id.
`Prior to 1997, various government institutions, including the Defense Advanced
`Research Projects Agency (“DARPA”), the National Science Foundation (“NSF”), and
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`Case 3:18-cr-04683-GPC Document 154 Filed 02/28/20 PageID.1354 Page 5 of 19
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`Internet Assigned Numbers Authority (“IANA”), served the function of a registry.
`AMERICAN REGISTRY FOR INTERNET NUMBERS, HISTORY AND SERVICES at 3 (2020)
`(ebook), available at https://www.arin.net/reference/training/historyand services.pdf. One
`NSF contractor, Network Solutions, Inc., was responsible for “the services of IP address
`and domain name registration and support.” Id. And, under the auspices of a government
`project named the Network Information Center (i.e., InterNIC), NSF and NSI “provide[d]
`registration and allocation of domain names and IP address numbers.” Id.
`In 1997, these institutions transferred their duties and responsibilities concerning
`IP address management and assignment to the newly-founded American Registry of
`Internet Numbers. Id. at 4. When it was formed, ARIN “inherited the InterNIC database
`of existing IP addresses” as well as the responsibility to maintain the records in it. Id.; see
`Edelman, Guidance from ARIN, supra. These records became known as “early
`registrations” or “legacy registrations.” Id. Legacy number resources thus include IP
`addresses issued “by an Internet Registry (InterNIC or its predecessors) prior to the
`inception of ARIN.” AMERICAN REGISTRY FOR INTERNET NUMBERS, Registration Services
`Agreement (RSA) FAQ, https://www.arin.net/about/corporate/agreements/rsa_faq/ (last
`visited February 27, 2020).
`Today, ARIN provides IP address services to the United States, Canada, and some
`islands in the Caribbean Sea and North Atlantic Ocean. See ARIN, HISTORY AND
`SERVICES, supra, at 3. ARIN also offers public access to internet resource registration
`data through its “WhoIs” service, “a public resource that allows a user to retrieve
`information about IP number resources, organizations, [points of contact], customers, and
`other entities.” AMERICAN REGISTRY FOR INTERNET NUMBERS, Using Whois,
`https://www.arin.net/resources/registry/whois/ (last visited February 27, 2020).
`II. Discussion
`Defendants’ motion to dismiss presents three questions: (A) whether the Court
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`must dismiss the electronic mail fraud counts of the Indictment because 18 U.S.C. §
`1037(a)(5) is void for vagueness; (B) in the alternative, whether the Court must dismiss
`the same counts for failure to state an offense; and (C) whether the Court must dismiss
`Count 1, which alleges a conspiracy to commit electronic mail fraud and wire fraud.
`For the following reasons, the Court DENIES Defendants’ motion.
`18 U.S.C. § 1037(a)(5) is Not Void for Vagueness.
`A.
`The United States Supreme Court has observed that the “[v]agueness doctrine is an
`outgrowth not of the First Amendment, but of the Due Process Clause of the Fifth
`Amendment.” United States v. Williams, 553 U.S. 285 (2008). “Vague statutes are
`invalidated for three reasons: (1) to avoid punishing people for behavior that they could
`not have known was illegal; (2) to avoid subjective enforcement of laws based on
`‘arbitrary and discriminatory enforcement’ by government officers; and (3) to avoid any
`chilling effect on the exercise of First Amendment freedoms.” Humanitarian Law Project
`v. Mukasey, 552 F.3d 916, 928 (9th Cir. 2009) (quoting Foti v. City of Menlo Park, 146
`F.3d 629, 638 (9th Cir. 1998)) (internal quotation marks omitted). A statute is
`unconstitutionally vague on its face if it “fails to provide a person of ordinary intelligence
`fair notice of what is prohibited, or is so standardless that it authorizes or encourages
`seriously discriminatory enforcement.” Williams, 553 U.S. at 304 (citations omitted). A
`statute is unconstitutionally vague as applied if it fails to place a defendant on notice that
`his conduct is criminal. United States v. Purdy, 264 F.3d 809, 811 (9th Cir. 2001).
`Courts ordinarily do not consider whether a statute is void on its face unless a
`defendant first demonstrates that the challenged statute implicates the First Amendment.
`See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982)
`(“In a facial challenge to the . . . vagueness of a law, a court's first task is to determine
`whether the enactment reaches a substantial amount of constitutionally protected
`conduct.”). Where a statute is challenged as unconstitutionally vague in a case that does
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`not involve the First Amendment, the Court “do[es] not consider ‘whether the statute is
`unconstitutional on its face,’ but rather ‘whether the statute is impermissibly vague in the
`circumstances of this case.’” Cavitt v. Cullen, 728 F.3d 1000, 1005 (9th Cir. 2013)
`(quoting United States v. Rodriguez, 360 F.3d 949, 953 (9th Cir. 2004)). In other words,
`for § 1037(a)(5) to be subject to a facial vagueness challenge, Defendants must
`demonstrate that the statute regulates commercial speech that is protected. Otherwise, the
`statute can only be challenged for vagueness on an as-applied basis.
`Here, Defendants argue that Counts 6 through 10 of the Indictment should be
`dismissed on the basis that the statute under which they are charged, 18 U.S.C. §
`1037(a)(5), is void for vagueness. Specifically, Defendants argue the terms “registrant,”
`“legitimate successor in interest,” and “falsely represent” used in § 1037(a)(5) render the
`statute unconstitutionally vague both on its face and as applied to Defendants.
`Section 1037(a)(5) Does Not Regulate Protected Speech.
`1.
`Whether a facial vagueness challenge can be mounted at all, turns on whether §
`1037(a)(5) implicates the First Amendment. For commercial speech to receive First
`Amendment protection, it must not be false, deceptive, or misleading. Cent. Hudson Gas
`& Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 576 (1980); United
`States v. Simpson, 741 F.3d 539, 550 (5th Cir. 2014). In Simpson, the Fifth Circuit found
`that because § 1037(a)(2) of the CAN-SPAM Act specifically targets and punishes only
`unprotected, intentionally misleading commercial speech, and thus excludes commercial
`speech that is not misleading, it is not unconstitutionally vague under the First
`Amendment. Simpson, 741 F.3d at 551. The Ninth Circuit has affirmatively chosen not to
`decide whether § 1037 regulates protected speech and is thereby subject to a facial
`vagueness challenge. United States v. Kilbride, 584 F.3d 1240, 1258 (9th Cir. 2009)
`(“We need not determine whether § 1037 regulates protected speech, thereby permitting
`defendants’ facial vagueness challenge, as in any case Defendants’ challenge would be
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`unsuccessful.”)
`Given the absence of precedent on this issue, Defendants argue the CAN-SPAM
`Act provisions, including subsection (a)(5), regulate commercial speech—namely, email
`advertising—which is protected by the First Amendment. (ECF No. 69-1 at 6, 9.) The
`Government contends otherwise, citing Simpson for the proposition that § 1037 regulates
`fraudulent conduct, not protected speech. (ECF No. 75 at 3); see also Simpson, 741 F.3d
`539, 550–51 (5th Cir. 2014) (finding that sending commercial email with intent to
`deceive or mislead recipients or ISPs as to origin of message, in violation of § 1037(a)(2),
`is not protected by First Amendment). Defendants respond that, unlike subsection (a)(2),
`the falsity element of subsection (a)(5) applies only to a representation and not to the
`content or transmission of the commercial emails. (ECF No. 84 at 7–9.)
`However, in both § 1037(a)(2) and § 1037(a)(5), the falsity element entails some
`deception in the process of transmitting emails, and that deception is aimed at concealing
`the source of spam emails (i.e., the “registrant”). In other words, subsection (a)(5) makes
`a crime the transmission of commercial emails initiated through the use of false
`representations as to one’s status as an IP address registrant or successor in interest to a
`registrant. From this, it is apparent that § 1037, a fraud-spam statute, does not concern the
`harmless sending of commercial emails.
`Moreover, as alleged in the Indictment, Defendants posed as authorized users of
`the IP addresses and concealed their use of the IP addresses to send “spam” emails by
`using business names, post office boxes, and email addresses under different names.
`(ECF No.1, Indictment at 3–4.) These actions, if proven true, would have the effect of
`subverting the public’s ability to rely on identifying information to discern the originator
`of the subject emails. Thus, for the foregoing reasons, and like subsection (a)(2),
`subsection (a)(5) targets fraudulent conduct and not protected speech. Simpson, 741 F.3d
`at 551 (“Given that the statute specifically targets and punishes only unprotected,
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`intentionally misleading commercial speech, and thus excludes commercial speech that is
`not misleading and all political or charitable speech, we conclude that it is not facially
`vague or overbroad.”).
`Because subsection (a)(5) concerns the transmission of commercial emails in the
`context of false representation and given that the First Amendment does not shield
`commercial speech that is “false, deceptive or misleading,” Simpson, 741 F.3d at 550–51,
`the Court finds that subsection (a)(5) does not implicate the First Amendment. Therefore,
`Defendants’ facial vagueness challenge is inappropriate here, and the vagueness
`challenge is instead confined to “the circumstances of this case.” See Rodriguez, 360 F.3d
`949 at 953.
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`Section 1037(a)(5) is Not Unconstitutionally Vague on Its Face.
`2.
`Even assuming 18 U.S.C. § 1037(a)(5) was to implicate the First Amendment,
`Defendants’ argument that the operative terms of § 1037(a)(5) – “registrant,” “legitimate
`successor in interest,” and “false representation” – are so unclear as to make the statute
`void-for-vagueness fails to persuade the Court.
`For Defendants to succeed on their facial challenge, they must allege that
`subsection (a)(5) “fails to provide a person of ordinary intelligence fair notice of what is
`prohibited, or is so standardless that it authorizes or encourages seriously discriminatory
`enforcement.” Kilbride, 584 F.3d at 1257 (quoting United States v. Williams, 553 U.S.
`285, 304 (2008)). “For statutes like § 1037 involving criminal sanctions ‘the requirement
`for clarity is enhanced.’” Id. (quoting Info. Providers’ Coal. for the Def. of the First
`Amendment v. FCC, 928 F.2d 866, 874 (9th Cir. 1991)). “However, even applying this
`heightened requirement, ‘due process does not require impossible standards of clarity.’”
`Id. (citing Kolender v. Lawson, 461 U.S. 352, 361 (1983)).
`“When Congress does not define a term in a statute, [courts] construe that term
`according to its ordinary, contemporary, common meaning.’” Kilbride, 584 F.3d at 1257
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`(quoting United States v. W.R. Grace, 504 F.3d 745, 755 (9th Cir. 2007)). In construing
`the terms of a statute, a court must recognize that a word “gathers meaning from the
`words around it.” Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,
`515 U.S. 687, 702 (1995). In other words, statutory terms are defined by their context.
`In determining whether 18 U.S.C. § 1037(a)(5) is unconstitutionally vague on its
`face, the Court first looks to the statute. This statute makes it a crime to knowingly2 and
`“falsely represent[] oneself to be the registrant or the legitimate successor in interest
`to the registrant of 5 or more Internet Protocol addresses, and intentionally initiate[] the
`transmission of multiple commercial electronic mail messages from such addresses.” 18
`U.S.C. § 1037(a)(5) (emphasis added). The terms at issue here are “registrant,”
`“legitimate successor in interest,” and “falsely represent.” (ECF No. 69-1 at 5–6.)
`Although neither the Act nor its implementing regulations define these terms, see 16
`C.F.R. § 316.2, the “ordinary, contemporary, common meaning” of the terms can be
`found in the dictionary.
`As the Government notes, the definitions for the terms in question are as follows:
`• “Registrant” is defined as “one that registers or is registered.” In turn, to
`“register” means “to make or secure official entry of in a register;” and a
`“register” is “a written record containing regular entries of items or
`details,” or “a book or system of public records.”
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`• “Legitimate” is defined as “being exactly as purposed: neither spurious nor
`false,” and “accordant with law or with established legal forms and
`requirements.” The term “successor in interest” is defined as “a successor
`to another’s interest in property,” and “especially: a successor in ownership
`of a business that is carried on and controlled substantially as it was before
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`2 The Supreme Court has noted that a scienter requirement can help a law escape a vagueness problem.
`Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513, 526 (1994) (citing Vill. of Hoffman Estates, 455
`U.S. at 499). § 1037(a)(5) contains such a scienter requirement: it does not simply prohibit the false
`representation of the registrant or legitimate successor in interest to the registrant but requires a
`defendant to do so knowingly. The intent requirement thus mitigates the perceived vagueness of §
`1037(a)(5).
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`the transfer.”
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`• The term “represent” is defined as “to act the part or role of.” The term
`“falsely” means “intentionally untrue,” “adjusted or made so as to
`deceive,” and “intended or intending to mislead.”
`MERRIAM-WEBSTER, https://www.merriam-webster.com (last visited Feb. 24, 2020).
`Taken together, the Government maintains that there is nothing vague about what
`is prohibited. (ECF No. 75 at 6–8.) The Government notes that in Kilbride, the terms
`challenged as vague by defendants (i.e., “material falsification,” “altered or concealed,”
`and “impair”) were not unconstitutionally vague and had a “clear meaning not open to
`wholly subjective interpretation.” (ECF No. 75 at 8 (quoting Kilbride, 584 F.3d at 1258)).
`By comparison, the Government argues, the terms at issue here are “much more precise.”
`(Id. at 7.) The Government further argues that the terms “registrant,” “legitimate
`successor in interest,” and “falsely represent” “are not descriptive terms subject to
`reasonable differences of opinion” and “leave no doubt as to their meaning.” (Id. at 8.)
`On the other hand, Defendants argue that general dictionary definitions are not
`sufficiently specific for technical criminal statutes such as 18 U.S.C. § 1037. (ECF No.
`69-1 at 10–12; ECF No. 84 at 9–11.) Defendants dismiss Kilbride’s conclusion as
`irrelevant because the court in that case was construing “very different terms” used in
`other subsections of § 1037 in the context of an as-applied challenge. (ECF No. 69-1 at
`11; ECF No. 84 at 10.) The crux of Defendants’ argument is that the statute fails to
`specify where or with whom the “registrant” must have registered. (ECF No. 69-1 at 10–
`11; ECF No. 84 at 11–14.) Defendants further argue that “falsely represent” is vague with
`respect to whom and in what manner the false representation must be made to trigger
`liability. (ECF No. 69-1 at 11; ECF No. 84 at 14–15.)
` “Registrant” and “Successor in Interest to the Registrant”
`i.
`Subsection (a)(5) states in full, “[w]hoever . . . knowingly falsely represents
`oneself to be the registrant or the legitimate successor in interest to the registrant of 5 or
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`more Internet Protocol addresses, and intentionally initiates the transmission of multiple
`commercial electronic mail messages from such addresses . . . or conspires to do so, shall
`be punished . . .” 18 U.S.C. § 1037(a)(5).
`Considering the context of the CAN-SPAM Act, and the history of how IP
`addresses have been assigned to their users, the Court finds that there is but one plausible
`registry for IP addresses in the United States today: ARIN. As the Government points
`out, since the inception of IP addresses, ARIN and its predecessor scientists, agencies,
`contractors, and non-profits have maintained a single list of internet numbers. (ECF No.
`75 at 8–11.) And, true enough, that registry has taken various forms. ARIN, HISTORY AND
`SERVICES, supra, at 3–4; Edelman, Guidance from ARIN, supra. Nonetheless, that the
`registry’s name and custodian have changed over time, or that the registry itself may
`suffer from some inaccuracies, does not detract from its consistent role as a catalogue for
`the entities or people entitled to use each assigned IP address. (ECF No. 86 at 6, 9–14.)
`Thus, as the language of the Act plainly directs itself to current “registrant[s]” of IP
`addresses, and such information is stored and made available to the public in the United
`States through a single entity, ARIN, the term “registrant” is not so vague as to fail to
`provide a person of ordinary intelligence fair notice of what is prohibited. Kilbride, 584
`F.3d at 1257; Williams, 553 U.S. at 304.
`Meanwhile, a “legitimate successor in interest to the registrant” would necessarily
`be “a successor to another’s interest” in the assigned IP address who has obtained such
`interest lawfully. For example, when an IP address is sold or transferred, there is only one
`legitimate successor in interest: the buyer who bought it, and whose name will then be
`entered in ARIN’s database as the new registrant of that IP address. Consequently, this
`term also provides a person of ordinary intelligence fair notice of what is prescribed.
` “Falsely Represent”
`ii.
`Defendants further argue that the term “falsely represent” in subsection (a)(5) is
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`unconstitutionally vague because the statute does not specify the person to whom the
`false representation must be made, or how that representation must be made. (ECF No.
`69-1 at 11–12; ECF No. 84 at 8–10.) Relying on Tandaric, a case involving false
`representation of U.S. citizenship, the Government contends that the absence of such
`specificity does not invalidate the statute. (ECF No. 75 at 7.) In Tandaric, the court found
`that the false representation statute was constitutional – despite failing to specify the
`circumstances under which, and the persons to whom, the false representation was to be
`made – because it required that the representation be made for fraudulent purpose. United
`States v. Tandaric, 152 F.2d 3, 5 (7th Cir. 1945).
`The terms of a criminal statute must be sufficiently clear to provide guidance as to
`what conduct will expose a person to liability. See Kilbride, 584 F.3d at 1257; Tandaric,
`152 F.2d at 3. A statute which proscribes conduct in terms so vague that a person of
`ordinary intelligence must necessarily guess at its meaning violates due process of law.
`Id. Here, as in Tandaric, the Court finds that the mere fact that § 1037(a)(5) does not
`specify the circumstances under which, and the persons to whom, the false representation
`must be made does not make the statute void for vagueness.
`Section 1037 is a fraud-spam statute enacted to, inter alia, address the growth in
`“spam [which] has become a favored mechanism of those who seek to defraud consumers
`and make a living by preying on unsuspecting e-mail users and those new to the
`Internet.” S. Rep. No. 108-102 at 2, 2004 U.S.C.C.A.N. 2348, 2349. Subsection (a)(5)
`thus criminalizes the transmission of commercial emails from IP addresses about which a
`person knowingly and falsely represents themselves to be the registrant. In other words,
`subsection (a)(5) limits itself, not by the person who is deceived, but rather by the
`specific conduct to which the false representation relates. It is aimed at, inter alia, the
`false impersonation of true registrants of IP addresses to send spam. Congress recognized
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`U.S.C. § 7701(a)(1)–(7).
`Given the context of the CAN-SPAM Act, and the specific conduct identified (i.e.,
`false representation of registrations), subsection (a)(5)’s false representation requirement
`is not so incomprehensibly vague that “[people] of common intelligence must necessarily
`guess at its meaning.” Tandaric, 152 F.2d at 5. Hence, for the foregoing reasons,
`subsection (a)(5) does not “fail[] to provide a person of ordinary intelligence fair notice
`of what is prohibited.” See Kilbride, 584 F.3d at 1257. Therefore, Defendants’ facial
`challenge must fail.
`An As-Applied Challenge to § 1037(a)(5) is Premature.
`3.
`Defendants additionally challenge the constitutionality of subsection (a)(5) for
`being vague as applied to their conduct. (ECF No. 69 at 7–9, 12–14.) Parallel to their
`facial challenge, Defendants’ as-applied challenge rests on the claim that the terms
`“registrant,” “legitimate successor in interest,” and “falsely represent” are so vague that
`Defendants could not have anticipated that making allegedly false representations about
`“inactive,” pre-ARIN, and thus presumably not registered, IP addresses would expose
`them to subsection (a)(5) liability. (Id.) In response, the Government argues that, at this
`pre-trial stage in the proceedings, the Defendants’ challenge is premature. (ECF No. 75 at
`3.) The Court agrees with the Government and denies Defendants’ as-applied challenge
`without prejudice at this time.
`“[V]agueness challenges to statutes which do not involve First Amendment
`freedoms must be examined in the light of the facts of the case at hand.” United States v.
`Harris, 705 F.3d 929, 932 (9th Cir. 2013) (quoting United States v. Mazurie, 419 U.S.
`544, 550 (1975)); United States v. Rodriguez, 360 F.3d 949, 953 (9th Cir. 2004) (“Where,
`as here, a statute is challenged as unconstitutionally vague in a cause of action not
`involving the First Amendment, we do not consider whether the statute is
`unconstitutional on its face. Rather, we must determine ‘whether the statute is
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`impermissibly vague in the circumstances of this case.’”) (citing United States v. Purdy,
`264 F.3d 809, 811 (9th Cir. 2004)); see also Vill. of Hoffman Estates v. Flipside, Hoffman
`Estates, Inc., 455 U.S. 489, 495 (1982) (“One to whose conduct a statute clearly applies
`may not successfully challenge it for vagueness. The rationale is evident: to sustain such
`a challenge, the complainant must prove that the enactment is vague not in the sense that
`it requires a person to conform his conduct to an imprecise but comprehensible normative
`standard, but rather in the sense that no standard of conduct is specified at all.”); see also
`United States v. Reyes, No. CR-06-00556-CRB, 2007 WL 831808, at *8 n.1 (N.D. Cal.
`Mar. 16, 2007) (finding pre-trial as-applied vagueness challenge premature in absence of
`any