Spamhaus Update: Judge Denies e360′s Requested Relief

For those of you following the e360 v. Spamhaus case, today the judge in the case issued an order denying e360′s motion to, among other things, order ICANN to suspend Spamhaus’s domain. In relevant part, Judge Kocoras wrote:

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 its 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.

While this does not eliminate the default judgment against Spamhaus, it does mean, at least at this time, that the judge will not order ICANN or Tucows to terminate Spamhaus’s domain.

It is worth noting that Spamhaus is also now being represented pro bono by the law firm of Jenner & Block. Last Friday, the firm filed a notice of appeal to the 7th Circuit on behalf of Spamhaus.

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  • Tim Bolen

    That was no victory, in any sense of the word, for spamhaus. Nor should it be.

    e360 sued spamhaus not knowing exactly who spamhaus is, nor who, and what, they represent. Their assumption was that spamhaus was a legitimate entity operating in a normal manner to accomplish a defined mission. Of course, it is not.

    Spamhaus is a constuction of “volunteers” whose personal interests guide spamhaus policy. Those volunteers are unknown to the general community, so the interests they promote are also unknown.

    Spamhaus’s treatment of the general public is abusive, to say the least, and there are absolutely no standards for policies or enforcement. Each case is up to the “whim” of the volunteer, and since the volunteer operates secretly, from behind the internet equivalent of a “white sheet with eyeholes,” there are no restraints on their activities, nor the methods they use to accomplish those activities.

    In other words, there is no transparency.

    From the user standpoint, assumptions must be made that those “volunteers” have the worst of motives, and represent the worst type of people, least qualified to make decisions – for the US society is based on transparency and balance.

    e360′s next move is to expose, and single out, the US volunteers.” There, I think, will be found the real reason spamhaus operates – the personal interest of the volunteers.

    Then a whole new game will be on.

    Tim Bolen

  • Jon T.

    No one likes spam, and generally speaking I think spam filters are a good thing. But when your ip gets blacklisted for no reason, it is very frustrating. Especially if they choose to ignore their mistake.

    Spamhaus has blocked the ip address of my webhosting server. They have blocked a range of ips so my ip was blocked along with 8 others. All email users on my hosting server are affected.

    When I contacted them they were unresponsive and later outright rude. In my second appeal to them to get de-listed I mentioned that there were financial ramifications of this and that it could result in litigation so they sent my reply to the abuse dept. at my isp!! They cited my reply as threatening and groundless!

    This has happened before and it cost me a lot of headache and loss of business.

    What happens on other servers with ips in my range is out of my control. I want to be compensated for the interruption in communications for my business and the businesses who use this ip for email.

    I am considering filing a motion against them here in California.