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Spamhaus Order on Domain Name
Sunday, October 22 2006 @ 08:58 AM EDT

There's an order on e360 Insight's Order to Show Cause asking why Spamhaus should not be held in contempt. The relief sought was suspension of the domain name by ICANN. The judge has denied that motion. Here's his order [PDF], which you can find on e360 Insight's page of documents from the case. I know from my email a lot of you care about this case, so I figured you'd want to know about this.

The judge based his ruling on the following:
The proposed order is limited to only the first remedy, suspension of the domain name by The Internet Corporation for Assigned Names and Numbers ("ICANN"), the entity responsible for coordinating unique identifiers used for Internet communications, or Tucows, Inc., the register through which Spamhaus obtained its domain name. Neither of these outfits are parties to this case. Though more circumscribed than the preceding request, this relief is still too broad to be warranted in this case. First, there has been no indication that ICANN or Tucows are not independent entitites, thus preventing a conclusion that either is acting in concert with Spamhaus to such a level that they could be brought within the ambit of Fed. R. Civ. P. 65(d). Though our ability to enforce an injunction is not necessarily coterminous with the rule, the limitations on its scope inform an exercise of our power to address contempt. See, e.g., Rockwell Graphics Systems, Inc. v. DEV Industries, Inc., 91 F.3 914, 920 (7th Cir. 1996). Second, the suspension would cut off all lawful online activities of Spamhaus via its existing domain name, not just those that are in contravention of this court's order. While we will not condone or tolerate noncompliance with a valid order of this court, neither will we impose a sanction that does not correspond to the gravity of the offending conduct.

Accordingly, the motion for a rule to show cause is denied without prejudice.

The order is dated October 19 and signed by U.S. District Court Judge Charles P. Kocoras. Spamhaus filed on October 13 a notice of appeal [PDF] in the Seventh Circuit, seeking review of the default judgment [PDF] against it. So, they are in the US court system now, for sure.

The order also mentions something that provides us a little insight into what is happening. e360's motion papers [PDF] asked "that the court order that accessing Defendant's technology within the United States to be improper and unlawful until such time as Defendant complies with the Order." It asked for per diem money damages against Spamhaus "for each day of Defendant's continued non-compliance", but it went further. If enforcement proved necessary, it wanted to be allowed to notify any ISPs using Spamhaus' technology "for the improper purposes and contrary to the Order" of the "improper nature of such continued use" and they also asked for leave to file an amended complaint in the action to name any "non-complying ISPs as additional defendants in this case, and further allowing Plaintiffs to seek an immediate TRO, without notice or bond, expedited discovery and an expedited hearing for a preliminary injunction against such non-complying ISP's." Sheesh. Talk about overplaying your hand.

The judge noticed something about the proposed order [PDF] e360 sent in. It didn't ask for this same relief. Normally, your memorandum in support will match the relief in any proposed order. Instead, this proposed order asked that "a suspension, or client hold, shall be placed on defendants website..." and that ICANN and Tucows be ordered to "suspend or place on client hold" the Spamhaus domain. Well, the judge is no dummy. He can read between the lines and figure out what it might mean if your moving papers and your proposed order don't match. And he just told e360 to forgeddaboud it. I'm sure it also didn't hurt that ICANN stood up and said it wasn't a party to the litigation and couldn't suspend any domain name, since it lacked the authority to do so. That's something I think e360s lawyers probably ought to have researched before asking for the relief they did.

That isn't the end of the story, because there will be an appeal of the original judgment, but it tells me that the picture is starting to come into focus.


  


Spamhaus Order on Domain Name | 237 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: DaveF on Sunday, October 22 2006 @ 10:07 AM EDT
If and when required

---
Imbibio, ergo sum

[ Reply to This | # ]

Offtopic contributions
Authored by: DaveF on Sunday, October 22 2006 @ 10:09 AM EDT
We value 'em but we value 'em more in this thread. And don't forget to make
links clickable.

---
Imbibio, ergo sum

[ Reply to This | # ]

Question about plaintiff
Authored by: jseigh on Sunday, October 22 2006 @ 10:10 AM EDT
Since the plaintiff in this case is allegedly a spammer, given that spammers
hide under fake identities, and that you can't anonymously file a suit AFAIK,
why hasn't the plaintiff been hit with a zillion lawsuits for violating every
antispam law in existence?

[ Reply to This | # ]

is there an actual cause for action
Authored by: Anonymous on Sunday, October 22 2006 @ 11:05 AM EDT
leaving aside the matter of jurisdiction, could some spammers have cause to sue

someone like spamhaus? if these spam registrys are doign their job, they are
certainly having an adverse effect on these people's businesses, and in some
jurisdictions truth isn't nececarily a defense, particuarly in a case where what

constitutes spam is in contention. i'm not tryign to defend spammers, i bring
this up more as a scary scenario of a posible oversight in current legislation.

(btw IANAL, so ignor the above as a quantity of tripe if you wish)

[ Reply to This | # ]

Spamhaus Order on Domain Name
Authored by: Anonymous on Sunday, October 22 2006 @ 11:39 AM EDT
e360insight's home page makes it quite clear that -- like SCO -- it is little
more than a barratry company. It's perversion and twisting of the truth are
worthy of some of SCO's filings.

Spamhaus' response has been that the U.S. courts lack jurisdiction over a group
based in England. What's the law on that?

Does the defendant's ignorance of the court's initial foolishness affect its
rights on appeal?

[ Reply to This | # ]

That is one sweet website...
Authored by: davogt on Sunday, October 22 2006 @ 12:27 PM EDT

They're almost as good as SCO:

"Today's ruling is a devastating loss of personal freedom for all U.S. citizens."

The U.S. Government used taxpayer dollars to create, develop and commercialize Internet technology and infrastructure. Now, a foreign organization is using the Internet to interfere with the personal freedoms of all Americans.

E360's position is that Spamhaus.org is a fanatical, vigilante organization operating in the United States with blatant disregard for U.S. law. In addition, E360 has proven Spamhaus routinely exposes their customers and volunteers to extreme legal risk by continuing to engage in improper blacklisting, defamation, extortion and blackmail in the name of fighting spam.

The Illinois ruling, although meaningless for Spamhaus, which as a British organization not subject to Illinois court orders is continuing to list Linhardt's IP addresses on its SBL spam blocklist as usual, the Illinois ruling shows that U.S. courts can be bamboozled by spammers with great ease

www.e360insight.com

[ Reply to This | # ]

Spamhaus Order on Domain Name
Authored by: Anonymous on Sunday, October 22 2006 @ 02:19 PM EDT
ICANN's response was on track. Regardless of any merit in the case against
spamhaus.org, God help the Internet if the US Court System gains any standing to
interfere with its international operation.

[ Reply to This | # ]

Spamhaus Order on Domain Name
Authored by: Anonymous on Sunday, October 22 2006 @ 03:34 PM EDT
Too bad the ISP's that funnel Email to the judge would be the
only ISP to turn off use of Spamhaus. Then maybe the light would dawn on him.

[ Reply to This | # ]

How does appealing a default judgment work?
Authored by: Anonymous on Sunday, October 22 2006 @ 04:06 PM EDT
Could PJ or another of our legal experts comment on how appeals of a default
judgment work in the US system? I know that if this were a summary or
post-trial judgment they were appealing, Spamhaus would have a hard time getting
it overturned, but I don't know if it's different for default judgments.

[ Reply to This | # ]

Moving papers differing from proposed orders....
Authored by: LocoYokel on Sunday, October 22 2006 @ 11:02 PM EDT
Well, the judge is no dummy. He can read between the lines and figure out what it might mean if your moving papers and your proposed order don't match.
Ok, call me a dummy. I don't get the implications here so would somebody who does please expand on this?

Thanks,

---
Waiting for the games I play to be released in Linux, or a decent Windows emulator, to switch entirely.

[ Reply to This | # ]

Possible Spamhaus defense
Authored by: tknarr on Monday, October 23 2006 @ 12:25 AM EDT

Perhaps some of the more legally knowledgable types could comment on this. Could Spamhaus have a legitimate defense against the judgement? Suppose they said to the appeals court "Look, we were faced with a lawsuit on short notice, not just in another country but on another continent entirely, in a legal system none of the lawyers we'd normally retain are familiar with. We had to retain counsel quickly, without a reasonable opportunity to evaluate them. Only after the original motions did we have the opportunity to evaluate counsel, and when we did we discovered they were off-base and taking a course that assumed things that weren't true (ie. that US courts have jurisdiction).". Would that be a valid reason to have the whole question of jurisdiction opened? Especially since Spamhaus can point to the fact that any appearance by them in a US court could/would be held to be an admission of jurisdiction, so if they wish to dispute jurisdiction they have to not appear.

[ Reply to This | # ]

Arrogant Judges?
Authored by: Anonymous on Monday, October 23 2006 @ 07:29 AM EDT
Who do these judges think they are? Some district judge in IL, thinks he has
jurisdiction over a UK business? Then he get all petulant when the UK business
ignores him.

[ Reply to This | # ]

Spamhaus Not The Good Guy Here.
Authored by: Anonymous on Monday, October 23 2006 @ 09:52 AM EDT
My story has nothing to do with email marketing.

I work for a small enterprise where we are in the process of building a
computer-based transcription system for medical transcribers.

Part of what we're doing is gathering sound files from medical transcription
companies. The easiest way to do this is by email.

What makes it difficult to complete this process - sending a notification email
to a list of 10 people - is when the ISP of one of the transcription companies
uses Spamhaus and they have an entire block of IPs on blacklist and my IP from
Embarq was in that block of 255 IP addresses.

Spamhaus absolutely refused to remove our IP from their blacklist. I received no
reply whatsoever to my request. In their FAQ section at the time was some blurb
about blacklisting entire blocks in order to force ISPs to take action against
spammers.

Personally, I can understand the desire of organizations using things like
Spamhaus, but this is fracking riduculous.

Consider the impression this makes on our prospective customer when we can't
even get email to them. It sounds like a bad excuse to blame it on their ISP.

It is time for businesses that are run like Spamhaus to be shutdown. They
operate just as badly and irresponsibly as the spammers they are trying to
eliminate.

[ Reply to This | # ]

Tripity, tripity, tripity
Authored by: Anonymous on Monday, October 23 2006 @ 04:50 PM EDT
My, we do seem to have woken the trolls.

Tufty

[ Reply to This | # ]
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