Wednesday, October 11, 2006

US Courts Try To Shut Down SpamHaus

A US court has proposed an order to suspend the Web site of UK-based anti-spam organisation Spamhaus.

Spamhaus was found to be in contempt of court by a US district court in Illinois last Friday, after it failed to pay $11.7m compensation to an email marketing company and remove the company's name from its blacklist.

District judge Charles P Kocoras proposed that ICANN — the body that controls key parts of the Internet including the .org domain — be ordered to suspend as a domain name "until such time as [the] defendant [Spamhaus] demonstrates to this Court why [it] should not be held in contempt for its failure to comply".

Spamhaus operates a blacklist of IP addresses of people it says are spammers. e360 Insight LLC, a mass-mailing firm, won the $11.7m compensation in September after a court battle against Spamhaus.

However, there is legal speculation as to whether the district court has the jurisdiction to order ICANN to suspend the Spamhaus domain name, as ICANN is an independent regulator.

"It's a tricky question," said IT law expert David Woods, associate at Pinsent Masons solicitors. "In theory ICANN is an independent body to regulate the use of domain names — but it's subject to US law. If it is ordered to, it is likely to take the safer option [and comply]."

Spamhaus has claimed that the Internet could be flooded with spam if it loses the domain. Woods acknowledged that this is a concern, but suggested that Spamhaus may be engaged in "a bit of self promotion by saying the world will be a less safe place" if it no longer occupies that domain.

If the domain name were suspended, there would be no legal issues with the organisation rebranding using a different domain name such as

"I'd be surprised if they didn't already have a range of domain names already registered," said Woods.

The US district court proposed the suspension after Spamhaus refused to pay the multi-million dollar compensation and remove e360 Insight LLC from its blacklist. Spamhaus also refused to publish an apology to the company and its head, David Lindhart, saying to do so would be a lie.

"The default judgement awards Linhardt, a one-man bulk email marketing outfit based in Chicago, compensatory damages totaling $11,715,000.00, orders Spamhaus to permanently remove Linhardt's ROKSO and spam evidence records, orders Spamhaus to lie by posting a notice stating that Linhardt is 'not a spammer' and orders Spamhaus to cease blocking spam sent by Linhardt's company e360 Insight LLC to Spamhaus' users," said Spamhaus on its Web site.

Spamhaus did not comply with this ruling, which was made on 13 September.

However, Woods said he doubted the US judge had the jurisdiction to make the initial ruling against a UK company.

"I don't think the court had jurisdiction to begin with. There may be scope to seek to enforce a foreign judgement through treaties, but the simple answer is no, it doesn't," said Woods.
e360 Insight said it was forced to take the initial action against Spamhaus as all other attempts to communicate with the organisation had failed.

"Spamhaus didn't seem to care that we are an opt-in email marketing company. They didn't seem to care that the only way to get on to our mailing list was to sign up for it. They didn't seem to care about the thousands of customers [who] would not receive order confirmation messages or other email messages they requested. They didn't care about the lost dollars in legitimate commerce or about the employees [who] lost their jobs as a result," said the e360 Web site.

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