The war against spam goes global (US stylee)
By Davey Winder in Editorial
Posted in Spam on
In a statement entitled ‘Spamhaus Litigation Update’ the Internet Corporation for Assigned Names and Numbers (ICANN) has made it clear that in the case of e360Insight, LLC et al. V. The Spamhaus Project which is currently pending in the United States District Court, Northern District of Illinois, it cannot comply with any order requiring it to suspend Spamhaus.org or any specific domain name because ICANN does not have either the ability or the authority to do so.
Interestingly, ICANN is not a party to the action, no such order has actually been issued as of yet, and there is growing speculation whether in the case of any order being forthcoming (which is likely) it is unable or rather unwilling. The ICANN argument rests upon the fact that only the Internet registrar with whom the registrant has a contractual relationship (Tucows in this case) can suspend an individual domain name.
Why should you care about such legal wrangling and responsibility squirming? Simple: Spamhaus is one of the biggest weapons out there in the fight against spam, and has been firing back at the spammer for many years now. If you agree with the whole blacklist blackhole approach to spam or not is pretty much by the by, the plain fact is that if Spamhaus is removed from the battlefield then the spammer gains ground, and we all end up with more spam.
So how did this end up at this potentially problematical point? Earlier this year e360insight sued Spamhaus, who it called a fanatical vigilante organisation, for including them in the spam blacklist database. The legal suit was originally filed in Illinois state court, Spamhaus managed to argue successfully and get it moved to federal court, at which point they then said that US courts had no jurisdiction in the matter as they were a UK business operating out of the UK and e360insight should sue them here instead. As such, Spamhaus decided not to defend the action, reasoning that it was a waste of time and especially money if there was no jurisdiction anyway. Of course, with no defence the judge had no option but to file a default judgement against Spamhaus for $11.7 million in damages (which Spamhaus made clear it isn’t paying) as well a demand to remove e360 from the blacklist (which it also isn’t doing on the grounds that the judgement is unenforceable.)
Unfortunately, this led to the court moving ahead with a proposed order instructing ICANN to suspend the domain, in effect taking Spamhaus out of business and handing victory to the spammers of this world on a big, gold, diamond encrusted plate. And that is no exaggeration if you believe the Spamhaus figures of 50 billion spam messages blocked by its system every single day. Yet the implications go beyond just the impact of 650 million mailboxes being swamped with a new wave of unfiltered spam traffic. There are political points at stake: the Internet Registry in question, Tucows, is based in Canada so if the US court orders them to suspend the domain, will they? If they do, will this prevent other possible blacklist services from taking up the Spamhaus banner?
If any of this happens, what is the future of ICANN, already under pressure from the United Nations and the international community at large for giving too much control of the global Internet to the US? Certainly if it ends up that a US court can order a US body such as ICANN to turn off any domain anywhere in the world on their say so, then I cannot see how that body can retain the confidence nor any validity outside of the US.
For now, at least, I think I have to say well done to ICANN (not something that happens often) for taking a somewhat principled stand. Well, I think so, the real stand will come when any such suspension order is actually made…
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