The Spamhaus case, a spam-savvy Illinois lawyer perspective

i’ve been following the spamhaus case with some interest. you see, i am a lawyer, and even an active member of the illinois bar. i happen to teach as an adjunct professor at the same law school where the judge in the case also teaches as an adjunct. and the class i’m
teaching next week is all about what behavior by a defendant in the online world is sufficient to establish a jurisdictional hook. Sun Shine invited me to contribute and, before too much misinformation gets circulating, i feel compelled to chime in with my 2 cents.

as lawyers always do, let me caveat this with the usual disclaimers:
i know only the bare minimum of details about the case, this message should not be construed in any way as legal advice, and no one should mistake me for a qualified trial lawyer. as someone, probably a law professor, once said: those who can do, do; those who can’t, teach.

with that said, below is my take on some of the recent questions that have arisen over the spamhaus case:

1. make no mistake: this is serious. to make that point, consider what is likely to come next. when spamhaus continues to operate, the plaintiffs will implore the court to enter criminal contempt charges against the company and its principals. it’s not clear how broadly such charges could be, but this judge has certainly not shied away from broad orders to this point. at the very least, this could mean that mr. linford will be at risk if ever he decides to pay a visit to the united states. the worst case, of course, is that u.s.-based volunteers could be criminally at risk as well. i doubt the worst case is likely to happen, but make no mistake that it is possible.

2. moreover, this judgment will likely follow “spamhaus” in perpetuity. even if it shuts down and later some of the same people reconstitute “specialhamhouse” to publish similar data, the judgment will almost certainly stick to the new entity. in the long run, cute arguments and legal slight of hand don’t work. look at an organization like kazaa, which spent a significant percentage of their significant revenues on the smartest lawyers in the world to avoid jurisdiction. even with those resources they were eventually hailed into court and effectively shut down. even if e360 is not the riaa, spamhaus, unfortunately, does not have anywhere near resources as kazaa.

3. that said, spamhaus had a likely winner of an argument if they’d made it from the beginning: the u.s. court does not properly have jurisdiction over the u.k.-based company. while this is an evolving area of law, what spamhaus does is, in my mind, most analogous to the london times publishing a “worst dressed celebrities” list. if joan cusack feels slighted by the times’ characterization of her choice of ball gowns, it is fairly well settled law that a court in illinois is not going to have jurisdiction to hear the case. in the spamhaus case, it would have been possible for an attorney to make what is known as a “special appearance” before the court without acknowledging the court’s jurisdiction in the case. reading the record, i’m puzzled that this wasn’t the strategy spamhaus’s counsel chose.

4. unfortunately, since that’s not what happened, spamhaus may have waived personal jurisdiction as a defense early on in the case when they not only appeared, but then asked for the case to be removed from state court (where it was originally filed) and moved to federal district court (where it is today). arguably, and this makes sense intuitively even if you don’t understand the finer points of u.s. civil procedure, doing so inherently acknowledged the jurisdiction of the federal court. in the beginning of a case like this there are two choices: a) you can fight it, or b) you can claim the court doesn’t have jurisdiction and, basically, ignore it. you can do one or the other, but you cannot do both. the pickle spamhaus is in right now is largely caused because they appear to have initially tried strategy (a) then switched to strategy (b). there may be a way to still raise the jurisdiction issue, but make no mistake, it’s an uphill battle at this point.

5. in terms of today’s action by the judge it appears that this is, currently, just a “proposed” order. i would imagine it is, in part, the judge’s gambit to get spamhaus to come back to the table to that the real issues in the case can be resolved. but, so long as spamhaus doesn’t show up, i don’t see anything that will prevent this order from being entered as final. in other words, there may be some time before icann is formally ordered to shut down the spamhaus domain, but make no mistake that icann’s lawyers will be considering their options beginning first thing monday, if they haven’t already begun the conference calls tonight. one more thing to consider: the fact that the order isn’t final means that e360’s lawyers can review it for loopholes and make suggestions on how to make it even more onerous on spamhaus. in other words, if you’re a friend to spamhaus, i wouldn’t be posting in any public fora comments like: “at least the judge didn’t…..”

6. when the order is final, i don’t know what icann will do, but i bet they’ll at least consider complying. in the end their decision is likely to be much more about setting a general policy than the specific details of who spamhaus is or why they are critical for the internet. icann will desperately want to stay out of this dispute, but they are subject to u.s. law and they will probably have attorneys who will argue they need to follow it. all it will take for this to end badly for spamhaus is one lawyer at icann getting a little bit spooked and spamhaus could lose not only it’s .org but potentially any other tld that icann controls. (this probably wouldn’t include cctlds like .uk which are governed by their own controlling entities.)

by the way, does any part of this whole thing strike anyone else as a bit ironic? it’s usually the spammers setting up non-traditional tlds and claiming that u.s. courts cannot assert jurisdiction over them. i’ve been amazed how many times with project honey pot
(www.projecthoneypot.org), an anti-spam service my company created, we’ve used spammers’ tricks in order to catch spammers. now it seems we need to use spammers’ legal arguments in order to defend the anti-spammers. like a bad episode of superman where he realizes lex luthor is his half brother, or something.

7. even if icann holds firm and doesn’t shut down spamhaus’s domain, i would imagine the plaintiffs will ask the judge to go after other vulnerable points in the spamhaus chain of command and control. based on the rulings i’ve seen so far, the judge may agree to go along. he seems pissed, and, frankly, reading the record i can understand why. as you all intuitively know, judges don’t like people ignoring their orders, especially when the people specifically asked for the case to be moved to the judge’s court and are now making public statements effectively calling the judge a buffoon. everyone involved needs to be careful.

8. how could this end well? the good news is that the 7th circuit is full of some of the smartest and most powerful judges in the country, so if there’s a way out of this mess spamhaus could be in far worse places to find it. that said, appealing a default judgment is unusual and not a strong position to start from. even after the notice of appeal is filed, an actual appeal is probably, in reality, just the backup, long-shot option. the primary option i think spamhaus should be discussing with counsel is asking the district court judge to set aside the default judgment. my guess — only a guess — is that he’d probably do that if spamhaus asked, apologized, and plead that they got some bad legal advice and were rectifying the situation as quickly as possible. however, and i’m sure this is going to be the sticking point, getting the default judgment lifted would require spamhaus go against some of their core principles and eat some crow.

what do i mean? as far as i can tell from the record, back when the case first started the judge issued a temporary restraining order (tro) that required spamhaus to remove the e360 listings from rokso and other places. initially it appears spamhaus complied with the
tro, probably on advice of counsel. then, according to the record, around the same time spamhaus shifted from strategy (a) to strategy (b), spamhaus put e360’s listings back up on their site and, essentially, gave the judge the finger. just a guess, but in order to get the default judgment lifted, spamhaus is probably going to have to at least comply with the judge’s original tro order. while i know that removing someone spamhaus is convinced is a spammer from their blocklist goes against the very core of the organization’s being, it is hard for me to see any way to get to a happy ending for spamhaus without (hopefully temporarily) compromising this principle.

do note that the tro is not the same thing as the permanent injunction which the judge issued after spamhaus stopped complying with the tro. the permanent injunction was issued after spamhaus violated the tro. my quick reading of the record is that it is the permanent injunction, not the tro, where spamhaus was required to put up the notice in big type on their home page that the plaintiffs really weren’t such bad guys after all. i know doing that would be
far too much crow for spamhaus to bear eating, but my guess is that it won’t be necessary in order to at least get back to where spamhaus was before they switched to strategy (b).

but here’s the real problem: even if the default judgment is lifted and spamhaus gets a real day in court, they’re in for a very, very expensive, very fact-intensive trial to prove e360 really is what they say they are. in the end, from what little i know, it seems likely that they have a good case and stand a good chance to win: this is, after all, no different than the london times publishing the worst dressed celebrities list. it still may be possible to shoe-horn the jurisdictional argument back into play, in which case you’d never get to the really expensive part (discovery) of the trial. unfortunately, even that’s going to take some serious billable hours from some serious legal firepower (read: $$$). i’ve been thinking about this for at least a week now and, to be honest, i can’t see a lot of ways this ends well.

9. finally, one last point: anyone who has a chance to talk publicly about this, if you are a friend to spamhaus i would strongly urge you to refrain from making derogatory statements about the judge or the legal system in the u.s. talk all you want about the evidence that you believe demonstrates e360 is a spammer. talk about how important spamhaus is to the functioning of email. but calling the judge stupid doesn’t help the case. given the record, the judge had little choice other than to do what he did. so far as i can tell, spamhaus presented no argument that would let him get out of this case, even withdrawing the answer that had been filed from the proceedings.

instead of badmouthing the judge, what i would imagine is far more productive are letters from isps around the world attesting to the importance of spamhaus as an organization and emphasizing how it is the individual isp, not spamhaus, making the affirmative choice to
stop e360s messages from entering your servers and your property. maybe counsel for one of the larger isps would be willing to act as a clearinghouse and file the letters, en masse, with the court. but, whatever you do, don’t go out and talk about how the judge is too old and too stupid to understand how the internet works — having read some of his other cases, i can guarantee you he is not. instead, politely educate him on why spamhaus is more than what the plaintiffs have painted it as: a punk organization based out of the u.k. that doesn’t respect u.s. law and actively interferes in the business operations of a legitimate illinois company.

an update to the spamhaus story can be found here:
http://blogs.securiteam.com/index.php/archives/688

matthew prince.
ceo, unspam technologies, inc.
adjunct professor of law
john marshall law school

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