U.S. Judge may order ICANN to yank Spamhaus domain

As I reported last month, Atriks partner David Linhardt filed an $11M defamation lawsuit against Spamhaus for listing him as a spammer. Spamhaus declined to defend themselves, arguing that U.S. courts do not have jurisdiction over a U.K. organization

Unfortunately, the legal system has a nasty catch-22: You can't just claim that a court doesn't have jurisdiction over you; you need to go to that court and convince it that it doesn't have jurisdiction. Otherwise, the court will assume it does have jurisdiction and act accordingly. (For example, earlier this year, I spent many thousands of dollars in legal costs proving to a court in North Dakota that North Dakota did not have jurisdiction over me in California.)

It's an ugly situation. Any time a rich plaintiff wants to use the court system to attack a poorer defendant with a SLAPP suit, neither truth nor jurisdiction is a defense. One way or the other, that defendant is committed to spending money they don't have defending a case that should never have been filed in the first place.

Since spamhaus declined to defend themselves in Illinois, the judge had no choice but to find for the plaintiff. Last month, the judge awarded $11M to Linhardt. Of course collecting will be another matter, as Spamhaus has no assets to seize in the U.S.

Now in retrospect, it looks like Spamhaus received less than stellar legal advice. By ignoring a court — even a court that arguably does not have jurisdiction — Spamhaus have now put themselves in contempt. If they ever do appear, either to argue jurisdiction or fight the case on its merits, they will have put themselves in the unenviable position of appearing before a judge who's probably rather annoyed at them right now.

Which brings us to the present: Not surprisingly, Judge Kocoras is not amused by Spamhaus' refusal to respect his authority and is now considering a proposed court order (pdf, 2 pages) which would order ICANN and Spamhaus' registrar to suspend Spamhaus' domain name, effectively disconnecting them from the internet.

From here, the future is too muddy to forsee. ICANN might decide, as an international organization, that a U.S. court does not have the authority to order it to suspend a registration. If this happens, the battle is taken to a new level as the various sides argue over whether or not ICANN is subject to U.S. law. If ICANN caves and obeys the court order, or if they lose a jurisdictional battle, a new international battle will begin over who controls ICANN. The United States only barely managed to retain controll of ICANN in response to international pressure. If ICANN winds up suspending the registration of a U.K. organization due to the order of a U.S. court, we can expect to see a new movement to have ICANN removed completely from U.S. control.

And if the spammers succeed in removing Spamhaus' registration, what then? First of all, we can expect to see Spamhaus re-open with a .uk registration. Every service provider which depended on Spamhaus for help with their spam filtering would be forced to update their software to make use of the new domain name.

Spamhaus may or may not decide to come to the U.S. to fight the case in Illinois. If so, they face an uphill battle. Whether they fight the case on jurisdiction or on its merits, my own personal experience shows that this will be a very expensive fight. (If this happens, expect calls for a defense fund on this and other forums.)

If Spamhaus continues to ignore the U.S. courts, they may find themselves subject to criminal contempt charges. Although not enforceable in the U.K., it could mean a very uncomfortable time for any Spamhaus officers if they should ever choose to trave in the U.S..

Just how fucked are we anyway?

I believe we are in nothing less than a fight to save the internet. Twelve years ago, spammers discovered Usenet and flooded it with spam until it was useless to regular users. Usenet was effectively destroyed by the spammers.

Having stripped Usenet to the bones, the locusts spammers have moved on to email. While not dead yet, email is clearly being destroyed as well. Every week I hear more and more stories of people who are abandoning email because the spammers have made it useless. The spammers themselves have seen this coming and have already moved on to blog comment spam, message board spam, and phone spam.

We are now in a situation where spammers have learned that they can cripple or even bring down spam-fighting organizations by filing frivolous lawsuits or launching DOS attacks. Witness what happened to MAPS, Blue Security, and Osirusoft.

As long as the courts — especially U.S. courts — give spammers free rein to abuse the legal system without repercussions, the situation will continue.

What needs to happen, and soon, is for the ISPs to start giving some real support to the volunteer anti-spam activists on whom they depend. The courts need to start holding spammers accountable for the frivolous lawsuits they file. The legal system needs to pass some anti-spam laws with real teeth (hint: use European anti-spam laws as a model.) Spam-friendly ISPs need to be held accountable along with the spammers they harbor.

Some years ago, anti-spam activists declared a moratorium on their scanceling activities which were keeping Usenet functional. For one week, no spam was cancelled. Not surprisingly, Usenet was immediately brought to its knees by spam. Many servers crashed outright under the load.

If the spammers succeed in shutting down the anti-spam organizations of the internet, we can expect to see email collapse in a similar way, but this time it won't be for just a week.

Further reading

Spamhaus legal answers

Ars Technica: Court likely to order ICANN to suspend Spamhaus' domain.

Securiteam blog: Article by Gadi Evron and legal analysis by Mathew Prince.

Slashdot: Perspectives on Spamhaus's Dilemma.

Computer World: Illinois court threatens Spamhaus with shutdown.

Section 230 of the Communications Decency Act, USC 47 § 230 (c)(2) seems to cover actions taken in good faith to block objectionable material.

Google Groups search for 60035 "box 1132" group:*.sightings in .sightings returns many examples of e360 spam.