All Eyes on Illinois as Spamhaus Faces Possible Shutdown

Anti-spam group The Spamhaus Project may have severely miscalculated when it thumbed its nose at an Illinois judge’s $11.7 million judgment against it last month.

Now, anti-spammers and some e-mailers are holding their collective breath as the same judge considers whether or not to issue an order for the Internet Corporation for Assigned Names and Numbers, or ICANN, to shut down the Spamhaus.org domain name.

The United States District Court Northern District of Illinois Eastern Division on Sept. 13 ordered Spamhaus to pay e-mail marketing concern e360 Insight and its CEO, David Linhardt, $11.7 million in damages and just under $2,000 in litigation costs. The judge issued the ruling in default because Spamhaus failed to show up in court to defend itself.

The ruling also ordered Spamhaus to stop causing e-mail sent by e360 Insight or any of its affiliates to be blocked. The judgment also ordered Spamhaus to post a one-inch-by-one-inch message on its site for six months saying that the group erroneously listed e360 Insight as a spammer.

Spamhaus’ director, Steve Linford, however, said that the Illinois court has no jurisdiction in the UK and if Linhardt wants to do battle, he should do so in Britain.

As a result, the judge is considering holding Spamhaus in contempt. According to e360’s Linhardt, the judge is on vacation this week and it is likely nothing will happen until he gets back.

Meanwhile, Spamhaus and most of its supporters don’t believe the group’s Internet address will be shut down.

“We think it cannot actually happen, due to the effect it would have both on the Internet and on millions of users,” wrote Linford in a statement on Spamhaus.org. “We believe a government agency would have to step in before it happened. One U.S. government agency has begun working on a response. Before an event such as this could occur, we believe ICANN would fight the order.”

However, one lawyer well known in both the anti-spam and marketing camps says Spamhaus may have severely miscalculated early in this fight and, as a result, may be in serious trouble.

“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),” wrote Matthew Prince, chief executive of Unspam Technologies, the company that runs the so-called child-protection do-not-e-mail registries in Utah and Michigan.

“All it will take for this to end badly for Spamhaus is one lawyer at ICANN getting a little bit spooked,” Prince, who is also an adjunct law professor at the John Marshall Law School in Chicago, wrote in a blog post on the subject.

Linford and his supporters’ public statements ridiculing the Illinois court’s decision also may have hurt the group, according to Prince.

“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,” wrote Prince. “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.”

Linford essentially called the judge an idiot in his response to the original ruling when he wrote: “The Illinois ruling shows that U.S. courts can be bamboozled by spammers with ease, and that no proof is required in order to obtain judgments over clearly foreign entities.”

Linford has said in posts on the anti-spam Internet discussion group Nanae that he has an unspecified backup plan if ICANN complies with an order to shut Spamhaus.org. Sources say the plan involves switching to a Spamhaus.org.uk address.

However, Linhardt implied in an e-mail exchange yesterday that U.S. e-mail administrators might want to think twice about using Spamhaus.org.uk.

“They would need to reconfigure their systems to connect to spamhaus.org.uk to go around the issue,” he wrote. “It would not be difficult for U.S. companies to do so.  However, they would be taking affirmative action to go around a court order.”

George Bilbrey, vice president and general manager of delivery assurance solutions for Return Path, said Spamhaus being shut down would result in a lot more spam reach people’s inboxes:

“Spamhaus is an incredibly important tool in protection millions of inboxes from spam,” he wrote in an e-mail “We (Return Path) have worked with many of the people there and they are, on the whole, reasonable folks dedicated to preventing spam.  

“The various Spamhaus lists are among the most widely used today,” he wrote. “Shutting Spamhaus down would result in a lot more spam making it into inboxes.”

Spamhaus maintains a list of IP addresses it contends are used by spammers. An unknown number of e-mail system administrators use the list to help determine whether or not to block incoming e-mail as spam.

Spamhaus’ critics contend it is a group of overzealous vigilantes with no accountability. However, many e-mail administrators say their systems would be crushed by unsolicited without Spamhaus. Linford claims Spamhaus protects 650 million inboxes.