The Spam Diaries

News and musings about the fight against spam.
 by Edward Falk

Thursday, October 19, 2006

Small victory in Spamhaus case

Judge Kocoras has denied e360's request for another sanction without Spamhaus even having made a single filing. In a nutshell, the judge has ruled that e360's request is overbroad and excessive.

In its moving papers, e360 requested three forms of relief for the claimed noncompliance: first, suspension of Spamhaus's domain name until it complies with the terms of the injunction; second, steps to prevent third parties from accessing Spamhaus's technology or permission to add them as defendants to this suit if they continue to do so; and third, a monetary sanction against Spamhaus for each day that it fails to comply with the injunction. When e360 appeared in court to present the motion, we noted the breadth of the requested relief and directed e360 to submit a draft order that was more tailored.

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 communication, or Tucows, Inc., the registrar through which Spamhaus obtained ts 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 entities, 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 Graphic Systems, Inc. v. DEV Industries, Inc., 91 F.3d 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.

This is consistent with my earlier comments about the judge — he didn't rule against Spamhaus out of cluelessness, as some people have suggested, but simply because when the defendant doesn't appear in court, he doesn't have much choice. Now that Spamhaus has decided to play along and challenge jurisdiction, things will be very different.

Here's to hoping there will be sanctions against e360, although my own experiences, and Spamhaus's earlier experiences have shown that this is unlikely.

Update: Here's a copy of the ruling. Looks like it was produced by some sort of OCR.

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