E360 drops lawsuit against Feguson, Gunn, and Chien — again

This just in: alleged spammer E360, who has filed SLAPP lawsuits not once, not twice, but three times against various individuals it thinks are somehow connected to Spamhaus, or who simply called E360 a spammer, has voluntarily dropped their lawsuit yet again.

Quick history: David Linhardt, the owner of E360 first filed a lawsuit against Susan Gunn, Mark Ferguson, Kelly Chien, and other anti-spam activists in federal court. That suit ended when Linhardt didn't even show up in court (neither did the defendants, who had never been served.)

A month later, Linhardt re-filed the same lawsuit, but in state court this time. This forced the defendants to get lawyers and prepare for a lawsuit all over again. In September 2007, Linhardt once again dropped the lawsuit.

True to form, he filed yet a third lawsuit in January of this year, naming Susan Gunn, Mark Ferguson, and Kelly Chien. This lawsuit was interesting in that it coincided with E360's lawsuit against Comcast. Things became interesting, with suits, counter suits, and counter-counter-suits flying thick and furious. There are rumors of offers from Linhardt to settle out of court which were presumably rejected by the defendants.

In mid-April, Gunn filed a motion to dismiss for lack of jurisdiction. The court gave Linhardt until May 27 to file a response, which Linhardt did not do. Gunn then filed a motion to dismiss based on Linhardt's failure to respond to the first motion.

Finally, comes news that Linhardt has filed his own motion to dismiss. The filing also notes that he's managed to settle with Ferguson. Unfortunately, as with most out-of-court settlements, neither side is saying what the terms were. Knowing what I know of Ferguson, I'm betting that he's not the one who conceeded anything.

The interesting thing is that Linhardt filed to dismiss with prejudice, meaning he won't be allowed to file again.

Now I'm not a lawyer, but I'm puzzled as to why the plaintiff would file to dismiss with prejudice, thus shutting the door for good on his ability to file yet again. This is essentially a legally-binding pledge not to sue again. Is he hoping that by doing this, he'll convince the defendants not to file any counter-suits? Or perhaps this will make the court look more favorably at him in such a suit. Or perhaps this was a condition that was attached in some sort of settlement he made with Ferguson.

If not for the fact that he'd filed with prejudice, I would assume this was just another round of his previous tactic of repeated file-and-drop. He knows he can never actually win a SLAPP lawsuit against anti-spam activists, so his most damaging tactic was to file a suit, and then drop it before he can lose, thus allowing him to repeat the attack. But filing with prejudice? Either he really means to let it go, or it's a diversion of some sort — perhaps he's planning to file in Federal court again next time.

Direct magazine picks up the Linhardt story

Direct magazine has picked up the story: Linhardt Sues Anti-Spammers…Again. The article contains a fair amount of detail on the story and its history. There's also a link to Linhardt's explanation as to why he claimed to have Sender Score certification from Return Path, which Return Path has denied.

E360 files third SLAPP suit against Susan Gunn and others

Three days ago, I asked rhetorically where E360 gets the money to file all these harassing lawsuits. That question becomes more serious with the news that Linhardt has filed yet a third lawsuit against Susan Gunn along with Mark Ferguson and Kelly Chien.

Details of the lawsuit can be found at SpamSuite. In a nutshell, it's the same lawsuit as before, claiming defamation because the defendants called them spammers.

There's no way that E360 can win this case on the merits given the abundant evidence of their spamming, and even Ferguson's proof that E360 falsified opt-in records. This is clearly just another lawsuit intended to harass anti-spam activists.

One major question: How many times are the courts going to allow Linhardt to keep re-filing the same lawsuit before they put a stop to it.

Where is the money coming from?

This brings us to the question: Where does E360 get the money for all these lawsuits? The one against Comcast certainly will go nowhere unless E360 spends significant money pursuing it.

One theory I've heard is that, like the Mark Felstein lawsuit against Spamhaus in 2003, this lawsuit is quietly being backed by a coalition of spammers. In this case, the spammers are hoping for a legal precedent which will force Comcast, and by extension other ISPs, to accept spam without any blocking.

News on David Ritz case

As I've written before on occasion, former porn spammer Jerry Reynolds filed a couple of SLAPP lawsuits against me over my old anti-spam website. In addition, he sued spam-fighter David Ritz for running "unauthorized" DNS lookups on his servers.*

Obviously David isn't really being sued over a few DNS lookups; he's being sued for being a thorn in Reynolds' side during the years when he was trying to get the Netzilla/Sexzilla porn spam operation to stop spamming.

At any rate, the trial in David's case started this week. I don't have access to a lot of information coming from the trial, but I did just receive word that plaintiff's motion to exclude David's expert witness was denied. It's not much, but it's good to know that the first news from the trial is good news.

Just a reminder that David's legal expenses are mounting. You can help by donating to his legal fund at: David Ritz; c/o Debra S. Koenig; Godfrey and Kahn, S.C.; 780 N Water Street; Milwaukee WI; 53202. Or, if you like, you can donate by paypal or credit card.

And finally, the auction for a copy of the Encyclopedia of Spam closes in just one day. Currently, the bidding is so low that the winner will get it for less than it cost me to have it bound. Here's your chance to own a very rare conversation piece. Proceeds go to David's defense fund. (Sorry, not available in North Dakota.)

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*For those unfamiliar with the inner workings of the internet, a DNS lookup is equivalent to calling up a switchboard and asking for a phone number. For example, if you want to call your local library, you don't punch L-I-B-R-A-R-Y into your phone, you first look up the number that belongs to the library, and then punch that in. By the exact same token, if you want to connect your web browser to library.org, you first go do a DNS server lookup to get the IP address of library.org and then make your connection. The difference is that the lookup process is done automatically for you by your browser.

That's right, every single one of you do hundreds of DNS lookups every day. You had to do one just to read this blog. Yet this is exactly what David Ritz is being sued for.

The other things David are accused of doing are a zone transfer and a whois lookup. A zone transfer is equivalent to calling the library and asking for a copy of their phone list. A whois lookup is equivalent to going to the county clerk's office and looking up the owner of a property.

Help fight a spammer SLAPP Suit — donate to defense fund

Spam-fighter David Ritz needs your help.

In previous editions of the Spam Diaries I've told the tale of a SLAPP lawsuit brought against me by spammer Jerry Reynolds.

In a nutshell, Reynolds sued me for defamation over his entry in my anti-spam website. The purpose of this lawsuit, obviously, was to suppress information about his prior spamming activities, and to extract revenge against an anti-spammer who had caused him trouble in the past. For more information about this lawsuit, see my entries About the lawsuits and SLAPP Lawsuits by Jerry Reynolds.

One issue which I've only brushed on is another lawsuit filed by Reynolds, against anti-spammer David Ritz. David is a spam-fighter of long standing, and one of the most meticulous I have ever met. If you ever need hard data on a spammer, contact David. (Just be prepared to wade through megabytes of evidence.) David has apparently been more of a thorn in Reynolds' hide than I have, so Reynolds is pursuing this case with a vengeance.

The case has been going on for more than a year, with Reynolds and his lawyer attacking viciously and repeatedly. David has been repeatedly deposed. His computers have been repeatedly subpoenaed. At his lawyer's request, we've only communicated to each other through our lawyers, so I'm not privy to everything that happened since the lawsuit against me was dismissed, but I do know that his expenses have been astronomical.

SLAPP lawsuits by spammers against anti-spammers are nothing new. Spamhaus has been sued twice. MAPS has been sued multiple times. Numerous other spam-fighters have also been sued. One of the differences here is that David is not an organization with resources or an individual with means. Unlike Spamhaus, he has no pro-bono lawyer. Frankly, I'm surprised he's survived this long.

The actual trial comes up very soon, and so I expect his expenses to increase vastly over the next few weeks.

The purpose of this entry is to ask that people give as generously as they can to David's defense fund.

Checks may be mailed to

David Ritz
c/o Debra S. Koenig
Godfrey and Kahn, S.C.
780 N Water Street
Milwaukee WI 53202

I have also created a web page where you may make donations by Paypal or credit card. This is more convenient, but a check directly to his lawyer's office will get there quicker.

Just for fun, I've created an added incentive: those who donates $500 or more will receive a bound copy of my Encyclopedia of Spam. The cost of producing this will be part of my donation to David's defense fund. This book is the source of this blog's logo.

Please give as much as you can.

E360Insight drops case against Feguson et al

On netnews, Mark Feguson announced that E360 had dropped their lawsuit against him and his fellow defendants.

SpamSuite concurs, and reports seeing this entry in the clerk's docket:

Activity Date: 8/30/2007   Participant: E360 INSIGHT
VOLUNTARY DISMISSAL W/LEAVE TO REFILE-ALLOWED
Judge:  QUINN, THOMAS P.

Loss and victory for Spamhaus in court

As reported at SpamSuite, the 7th Circuit has ruled on Spamhaus' appeal. In a nutshell, the default judgement against Spamhaus has been upheld, but the damage award and the injunction are overturned.

What this means is that because Spamhaus didn't bother to defend themselves (previously arguing that Illinois courts didn't have jurisdiction over them), they've lost the case by default. This can no longer be argued in court, nor can jurisdiction. This was to be expected; it would have taken extraordinary circumstances for the court to reverse the default judgement.

However, the judge has ruled that the $11M+ judgement against them was excessive, and so everybody goes back to court to argue damages. It's impossible at this time to predict what the damages will finally be.

In addition, the injunction against listing E360 as a spammer has been lifted. As long as Spamhaus can show new evidence of spamming (which is trivial to do), we can expect the E360 SBL entry to return.

Update: John Levine has a better and more detailed analysis.

The other shoe drops: E360 re-files their lawsuit

Last month, I wrote that E360Insight had dropped their lawsuit against several assorted anti-spammers. As was suspected, they have re-filed in Illinois state court. Named in the suit are Mark Ferguson, Susan Gunn, Rob Saecker, Rich Tietjens, Bill Silverstein, and Tim Skirvin.

The gist of E360's complaints is that the defendants have accused them of being spammers, causing them to be blocked and to lose business.

It is not entirely clear to me at the moment why E360 chose to move the case to state court.

What if they held a lawsuit and nobody came?

Last month, I wrote that Dave Linhardt (of E360Insight) had filed another SLAPP suit against various anti-spammers.

Well word has just reached me that the lawsuit has been dismissed.

Word on the street is that nobody from either side showed up in court. (This was to be expected on the anti-spammers' side, since none of them had been served). Apparently Linhardt's lawyers phoned the court and said they were dismissing without prejudice.

It's not over yet (it's never really over), since Linhardt still has the option of refiling.

I win my second lawsuit on jurisdiction!

This just in: Judge Irby has dismissed (pdf, 7 pages) Jerry Reynolds' computer crimes case against me for lack of jurisdiction.

The computer crimes case is this: Spam-fighter David Ritz is accused of computer crime for "stealing" Jerry Reynolds' DNS data by doing a "host -l" command to perform a DNS zone transfer. He's also accused — and I'm not making this up — of stealing Reynolds' Whois data.

Anyway, I was named as co-defendant because I linked to the Usenet post in which Ritz announced the results. Reynolds also obtained a TRO forbidding Ritz or myself from discussing Reynolds' servers in any way — achieving Reynolds' true goal of censoring my web page which discussed his spamming history. Armed with this TRO, Reynolds was also able to censor Usenet posts discussing his spamming activities.

As it is in the nature of lawyers to ask you not to discuss cases, I've mostly kept quiet about this one. Now that the case is no longer pending, and the TRO is no longer in effect, I have "unhidden" a number of previous posts about the case:

• Second court hearing — discusses the upcoming jurisdiction hearing on the case
• Today's court hearing — discusses how the hearing went. It dragged on forever and had to be continued. The best part was when my lawyer Kelly Wallace started tearing Reynolds' friend/sysadmin Brad Allison apart. When the questions got pointed and Allison started rocking back and forth in his chair, Reynolds' lawyer Harristhal stood up and used every trick he could think of to stop the hearing, finally obtaining success with "I have a plane to catch".
• Little bit of good news in jurisdiction hearing — Harristhal's request for more expert witnesses was denied.
• Legal documents — all legal documents are now available at rahul.net. Some are quite large (they're scanned pdfs) and most are quite boring. The high points are the parts where:
  • Harristhal quietly dropped my lawyer out of the loop and was thus able to obtain a default judgement against me.
  • The part where they admit to doing dns lookups on Ritz (which is exactly what Ritz is accused of)
  • Various conspiracy theory nonsense
  • Request for admission that I used whois. Yeah, really.
  • Request for admission from Ritz that he didn't have permission to use DNS.
  • The transcripts, which are plain text, quick to download, and kind of fun to read.
• Documentation on the forged cancels that Reynolds or someone helping him issued in order to delete all the evidence from the usenet archives that I would have used to defend myself in the defamation case.

Hmmm. Looks like I didn't write anything about the continued hearing. No matter, the transcript is available here (part 1, part 2). The second half wasn't very exciting.

After the court hearing, there really wasn't much to do but wait for Judge Irby's decision. Harristhal tried a couple of tricks in the meantime, such as insisting that our statute of limitations on opposing the default judgement had expired while we were waiting for the jurisdiction decision, but the judge wasn't buying it.

The computer crimes case against David Ritz is still pending, and I will report on this from time to time as it progresses.

Little bit of good news in ongoing jurisdiction hearing

As you may recall from an earlier post, Harristhal had asked the court for permission to introduce additional expert witnesses and testimony in the middle of the jurisdiction hearing. (The hearing was held in late March and was continued to early May.) This would have meant even more affidavits all around, and would have required us to get our own expert witnesses. This certainly would have resulted in further delays and further costs. As it was, we wasted a lot of time and money filing briefs back and forth over whether this should be allowed.

Harristhal's main argument was that we had "surprised" him in mid-hearing by asserting that there was no conspiracy between myself and Ritz (here's a hint Mr. Harristhal: next time read the affidavits we file; it's what your client is supposedly paying you for.) In addition, Harristhal insisted we had waived argument over conspiracy by not introducing it previously.

Friday, Judge Irby handed down two decisions:

1) Plaintiff's Memorandum request for permission to call additional witnesses on the issues of conspiracy jurisdiction is hereby DENIED.

2) Defendant, Ed Falk has not waived any defense of the issue of conspiracy jurisdiction. The Evidentiary Hearing continued to May 9, 2006, will be held in compliance with this Court's earlier Order dated March 7, 2006.

That's two more decisions in our favor. I haven't been keeping score, but I think that except for the judge's decision to allow Harristhal access to my private emails to my lawyer (from before she was my lawyer), every decision in both cases has been in our favor.

Today's court hearing in the computer crime case

I had my second court hearing today; this time in the Sierra vs Ritz & Falk case. It dragged on forever, and will have to be continued until another day.

There are a couple of issues that pertain to jurisdiction. The first is: what, if any, contacts I made with North Dakota, and the second is: was I involved in a conspiracy with David Ritz to illegally obtain DNS data from Sierra.

We had hoped that Judge Racek's decision on the first issue would be taken as precedent by Judge Irby, and we could limit ourselves to the issue of conspiracy. Unfortunately, it was not to be the case, and so we had to settle in for the long haul.

Most of what Harristhal talked on the contacts issue about was the same as before. He still won't give up on the "inner-circle" mailing list. He also asked me if I considered myself a hacker or had ever called myself a hacker on the internet. I said no, and he triumphantly pointed to my art.net web page, which is listed under "hacker artists" at art.net. I had to explain that the original definition of hacker meant a very clever programmer. I also pointed out that I did not call myself a hacker on that web page, but that the owner of art.net had chosen that designation.

Harristhal sprung another surprise on me: He asked me if my web site has cgi scripts. Well, yes it does; if you click on a header in a spam report, a cgi script extracts the one header you selected and returns it as a web page. Amazingly, Harristhal insists that the use of cgi scripts makes a web site interactive. That came from so far out in left field that I was left stunned for a moment. Unfortunately, because John Levine was sequestered while I testified, during his cross examination by Harristhal, he had no idea what Harristhal was talking about.

Anyway, the fun really began when my lawyer, Kelly Wallace (of Wellborn & Wallace) started quizzing Brad Allison, Reynolds' sysadmin. Under questioning, Allison admitted that DNS transfers are ordinary network operations. He also asserted that he didn't know what port 25 is, or whether or not you can telnet to a mail server. This probably makes him the world's most incompetent sysadmin. As the questioning got closer to having Allison admit that doing a DNS lookup is not, in fact, against the law in any way, Harristhal popped up and started objecting like crazy. He kept insisting that this was not relavent to jurisdiction. Kelly Wallace insisted that it was, for the obvious reason that if there's no crime, there's no conspiracy. And then Harristhal was like "hey, that's not fair, we had no idea you guys were going to bring this up. This is trial by ambush; you guys gave us no indication you were going to do this", and we're all "Nuh uh, look in the affidavits, both Falk and Levine mentioned this", and then the judge is like "Yeah, I'd like to hear this too", and now Harristhal is all "But I gotta plane to catch in an hour, and I need more expert witnesses".

Well, maybe the dialog didn't go exactly like that, but I'll have a court transcript as soon as I can. Anyway, it was a real shame that we didn't get to finish this just when it was starting to get interesting.

So the upshot is that the hearing has been continued to a later date and I have no idea when we'll finish. Harristhal is going to find expert witnesses (apparently he's realized that putting Allison on the stand wasn't such a good idea) to explain what DNS is, and probably to explain what a "hacker" is. Now I need to come up with more expert witnesses of my own and maybe buy plane tickets out there.

In other words: To Be Continued.

Second court hearing

Since I'm being sued twice, once for defamation and once for computer crime, I have a second evidentiary hearing on jurisdiction coming up on Tuesday; this time in the computer crime case. My expert witness, John Levine, and I will both be attending by video conference from different cities.

Since judge Racek has already ruled in my favor on jurisdiction in the defamation case, there's a chance that judge Irby will accept that decision as precedent. This leaves Harristhal's only real argument to be one of conspiracy. If he can prove that I conspired with my co-defendent David Ritz to commit a crime in North Dakota, then jurisdiction would be established.

The affidavits Harristhal filed this time around were surprisingly thin. He brought up very little of the material he used in the first hearing. Almost nothing relavent to contacts I may or may not have had with North Dakota.

The primary item attached to Harristhal's affidavit is a copy of David Ritz's deposition. It looks like Harristhal will be concentrating on the conspiracy angle. I'm a little surprised that he didn't include my postings to the old "inner-circle" mailing list.

Well, in the last hearing, Harristhal brought up evidence he hadn't submitted to the court previously as required, so I'm sure he's got a surprise or two waiting for me on Tuesday.

Fargo Forum and WDAY cover my case

At the request of my lawyers, I've refrained from discussing my lawsuits at this time. However at yesterday's jurisdiction hearing I was surprised to see TV cameras in the court room. I had been under the impression that the hearing would be closed, but apparently the local press thought otherwise. By the end of the evening, WDAY had covered it, and by the next day it was also in the Fargo Forum.

The coverage wasn't very deep, but frankly, how interesting can a jurisdiction squabble be? It all seems to hinge on whether or not my web site is "targeted" at North Dakota, and whether a traceroute packet that ends up in North Dakota constitutes my making contact with North Dakota.

More details later.

My court hearing was held today

Transcript is now up and available. Here's my favorite part:

Q:  So you ran a traceroute on Newsfeeds.com?

A:  No, I ran a traceroute on the kiddy porn
site Sexylolitas and the result came up listing
Newsfeeds.

I'm sorry, what kind of lawyer points out to the court that his client was providing service to a child pornography site? I'd forgotten all about that myself until Harristhal brought it up.

Anyway, the gist of it all is that Harristhal is arguing that I put myself into North Dakota jurisdiction by a) answering emails from a lawyer in North Dakota, and thus involving myself in a court case there, b) by telling fellow spam-fighters that I expected to be sued by someone from North Dakota, and by c) sending traceroute packets there*.

Oh, my second-favorite part:

Your Honor, this is an unusual context.  I recognize
that.  The internet is a new creature.

Maybe the internet is a new creature to you, Mr. Harristhal, but the state of North Dakota entered the 21st century with the rest of us.

Anyway, nothing to do now but wait for the Judge's decision.

Harristhal & Allison affidavits.

I received copies of the Harristhal and Allison affidavits today in the jurisdiction hearing in the defamation case. Harristhal's affidavit came to 129 pages! All I can guess is that he's charging Reynolds by the word.

It included a complete copy of one of David Ritz's depositions, even though David is not a party to the defamation suit. It included a large number of items taken from David's disk and other sources which are not even remotely relevant to the issue of jurisdiction.

Well, anyway, my response is online by now, I think I answered fairly well.

As for Allison, he basically includes excerpts from my web site and says they "target" North Dakota somehow, and he includes a couple of usenet posts and claims that I "directed" them to the newsfeeds.com servers.

Progress on the jurisdiction hearing

Judge Racek, the judge in the defamation case, has granted our requests in the jurisdiction hearing scheduled for the 28th.

Judge Racek has granted our request that the hearing be an evidentiary hearing. This places the burden of proof on Reynolds to prove that North Dakota should have jursidiction. Reynolds had objected and wanted simply a motion hearing with affidavits and no oral testimony.

All direct testimony to be submitted in advance by affidavit -- no surprises allowed.

Witnesses may appear via interactive tv. Reynolds was hoping to force my witnesses and me to travel all the way to ND or not testify at all.

Reynolds' memo opposing the use of video conferencing

Reynolds has issued his memorandum opposing the use of telephone or video conferencing in my jurisdiction hearing. The real reason, of course, is to make this cost me as much as possible. The nominal reason is so that my demeanor can be seen in the court room. The most offensive part of this memo is the assertion that we want to do this electronically so that David Ritz won't have to travel to ND and risk arrest, and that his severe health problems have nothing to do with it.

Full text is here (pdf, 11 scanned pages)

Preparing for our motion allowing remote testimony

I'm being sued in North Dakota.

I don't live in North Dakota. I don't do business in North Dakota. I've never even set foot in North Dakota. I'm pretty sure rahul.net isn't located in North Dakota. So why, then, am I being sued in North Dakota? It's because Reynolds lives there, and he says my website is "targeted" at him, a North Dakota citizen.

Ok, so that's a bit of a stretch. Obviously, we're arguing that North Dakota has no say over what I write here in California. So who decides where jurisdiction really lies? You guessed it -- North Dakota does. So now we have to have a hearing in the court to decide where the trial will be. This means motions, counter-motions, and counter-counter motions. Affidavits, and briefs, and expert witnesses. It's a whole trial by itself, just to determine if I have to travel to North Dakota to be sued there. All of these things cost money, of course. (Which is just fine by Reynolds naturally; that's the whole point of a slapp suit.)

But get this: Normally in such circumstances, we'd do this by phone. In North Dakota, that's perfectly acceptable. You can even do a full-blown trial by phone. Welcome to the 21st century. But since the purpose of a slapp suit is to cost me money, Reynolds' lawyer, Harristhal, is insisting I appear in person for the hearing. That's right, I'm expected to travel 2000 miles to attend a hearing on whether or not I need to travel 2000 miles for a trial. Kind of defeats the purpose. Never mind that this could just as easily be done by phone. Never mind that the courthouse is set up for interactive video for just such an eventuality. Never mind that Harristhal himself often appears by video rather than in person. No, he insists that I have to travel to North Dakota.

So now we have another round of motions and counter-motions and counter-counter motions leading up to another hearing. Just to decide on how the hearing will be conducted to decide where the trial will be conducted.

Ok, let's get this preliminary pre-trial hearing underway.

Pete Wellborn formally joins the lawsuit

Atlanta lawyer Pete Wellborn has formally joined the lawsuit with the filing of his petition to practice in North Dakota for the purpose of this suit. Wellborn is known in the industry as the "Spammer Hammer". This is the guy who took down Howard Carmack ($16M), Sam Khuri, Sanford Wallace ($2M), K.C. Smith ($25M), James McCalla ($11B), and successfully defended Spamhaus from a SLAPP lawsuit filed by Mark Felstein on behalf of a coalition of Florida spammers and Mark Mumma from a SLAPP suit filed by cruise.com.

I regret I won't be able to see Harristhal and Reynolds' faces when they learn this.