Federal Case Said Warning Against Spam Blacklist Zealotry
Spamhaus will fight a U.S. federal court order barring it from blocking e-mails by an Internet marketer it deems a spammer, it said Tues. The case -- e360 Insight LLC v. Spamhaus -- took an interesting turn late last week when the plaintiff asked U.S. Dist. Court, Chicago, to cite spam-cop Spamhaus for contempt and order ICANN to suspend its domain name. It also raises questions about risks to legitimate e- mailers from overly zealous spam-busting, one lawyer said.
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Spamhaus began blacklisting e360 in 2003, costing it customers and reputation, the company alleged. E360 denied it’s a spammer, saying on its website it’s a legitimate opt- in e-mail marketing company. July 7, the company sought a temporary injunction in Ill. Circuit Court; Spamhaus was able to move the case to federal court. It struck e360 from its blacklist, then withdrew from the case, resulting in a default order temporarily barring Spamhaus from blocking e360’s addresses.
In Aug., e360 charged, Spamhaus began a “blacklisting jihad” on every Internet Protocol (IP) address and network it found remotely linked to e360, breaching the court order. When the spam cop failed to make further appearance in the case, U.S. Dist. Judge Charles Kocoras Sept. 13 ruled it wrongfully put e360 on its spammer blacklist, interfered with e360’s contracts with suppliers and customers, and defamed the marketer by publishing false statements about it. Kocoras set $11.7 million in damages for contract interference but declined to award punitive damages, saying the record didn’t show Spamhaus’s behavior was malicious enough to warrant them.
The court ordered Spamhaus: (1) Not to interfere with e-mail sent by e360 or affiliates or subsidiaries unless it clearly shows they've violated U.S. antispam law. (2) Not to list entire networks or ranges of IP addresses owned or operated by plaintiffs without proving they're breaching the law. (3) To post a message indicating e360 and the others aren’t spammers. (4) Not to contact or help others contact e360 customers or suppliers with intent to persuade them to stop trading with e360. The ruling “confirms e360Insight’s position that Spamhaus.org is a fanatical, vigilante organization that operates in the U.S. with blatant disregard for U.S. law,” the company said on its website. It also confirms e360’s validity as a responsible marketer, the company said.
Spamhaus “lawyers are still working on the correct way to appeal/quash the ruling without giving up our U.K. jurisdiction,” as they've tried to do all along, Spamhaus CEO Steve Linford said. The decision could come by week’s end. Meanwhile, e360 has asked the court to hold Spamhaus in contempt and to order ICANN or Spamhaus registrar Tucows to place a hold on its domain name.
Linford believes that couldn’t happen without prior intervention by a govt. agency, and that ICANN would fight such an order because it “understands at least the technical effect as well as the political one (hint: the ITU is watching).” Spamhaus blocks 50 billion spams per day, it said. “For this reason alone we believe that ICANN suspending Spamhaus.org is probably a non-starter,” Linford said. ICANN and Tucows are “fully aware” of the matter, he said, and “indications are that they will not take the order lying down.”
It wouldn’t work for ICANN to suspend the domain, since the Spamhaus list and its other services could be moved to a different IP address, said Jonathan Ezor, Touro Law Center Dir.-Institute for Business, Law & Technology. Shuttering Spamhaus would require the court to issue an enforceable order against the project itself, again raising the issue of U.S. jurisdiction over a U.K. entity.
Acting on the notion that Spamhaus avoid the problem by switching to a new domain name to continue blocking “would get us a criminal contempt charge from the court,” Linford told us. Spamhaus doesn’t want “a criminal record for the sake of fighting spam,” the company said in a new posting aimed at reassuring Internet users there’s “no cause for alarm currently.”
If upheld and enforced, the judgment won’t be the first time a U.S. court has held a foreign party liable for damage done online that affected a U.S. business, Ezor said: “It may, though, serve to put block-list creators and spam filter vendors alike on notice that they can and perhaps should be held responsible for negligent inclusion of non-spammers within spam lists,” he said: “Given the world’s increasing dependence on Internet e-mail, including for government filings and mission-critical communications, the stakes for being careless about compiling and distributing spammer lists are just too high.”