E360 Aims to Smoke Spamhaus Out

In a massive broadening of his high-stakes court battle against anti-spam blacklisting service Spamhaus, e-mail marketer e360 Insight’s CEO Dave Linhardt claims he has served subpoenas to at least 17 companies.

The effort aims to uncover sources of Spamhaus’ funding and force it to make good on an $11.7 million default judgment leveled against it in September. Spamhaus has refused to abide by the ruling, claiming U.S. courts have no jurisdiction over it.

Linhardt has reportedly served subpoenas on 15 service providers he believes subscribe to Spamhaus’ data feed, including Earthlink, Adelphia Communications, Charter Communications, Cox Communications and Cincinnati Bell. He claims he has also served subpoenas to Critical Path, which he claims hosts Spamhaus’ site in San Francisco, and e-mail deliverability concern Return Path.

George Bilbrey, vice president and general manager of delivery assurance solutions for Return Path, verified that his company has received a subpoena from e360’s lawyers asking for copies of all e-mail communications between his company and Spamhaus.

Bilbrey said, however, that Return Path doesn’t pay Spamhaus for its data feed, so company e-mails are unlikely to have the type of information Linhardt seeks.

“I think he’s going to be disappointed in our case,” Bilbrey said. Return Path is one of 29 individuals and organizations that recently signed an amicus brief in support of Spamhaus in its legal battle with e360.

Spamhaus maintains a list of supposed sources of spam that an unknown but significant number of e-mail inbox providers use to determine whether or not to block incoming e-mail as spam. Though Spamhaus is an all-volunteer non-profit organization, it began charging for its services in 2004. For example, a company with from 100 to 500 e-mail users will pay $800 per year for Spamhaus’ data feed.

Linhardt estimates Spamhaus receives $1.8 million annually for its service.

However, the money trail leading to Spamhaus has been carefully covered. Those who want to buy Spamhaus’ service must do so through third-party contractors, and are allowed to do so only after they have filled out an application and been approved by Spamhaus. The organization vets its applicants to protect itself from spammers who may try and undermine it.

Linhardt’s subpoenas aim to find out who Spamhaus’ third-party contractors are.

Linhardt won an $11.7 million default judgment against Spamhaus in September when representatives of the anti-spam blacklister failed to show up in court to defend themselves. Linhardt sued Spamhaus last year, claiming the group wrongfully listed his servers resulting in as much as 65% of his e-mail being blocked by Internet service providers who subscribe to Spamhaus’ service.

The decision barred Spamhaus from causing e-mail sent by e360 Insight or any of its affiliates to be blocked.

Spamhaus’ chief executive, Steve Linford, has refused to abide by the decision, claiming the Illinois court has no jurisdiction over his UK-based organization. He has also retained a Chicago-based lawyer in an attempt to get last September’s default judgment overturned.

Linhardt has since launched a multi-pronged legal assault on Spamhaus attempting to get it shut down.

For example, he unsuccessfully tried to get the Internet Corporation for Assigned Names and Numbers to shut Spamhaus’ domain.

“We've already chased Linford out of the US,” said Linhardt in his e-mails to this publication. “We are going to chase Linford out of the European Union as well if he keeps damaging our business.”

The battle has become so acrimonious that two people who appear to be Linford and Linhardt have been arguing publicly on the online anti-spam discussion group Nanae.

For example, on March 2, Linhardt posted a message saying Linford could stop the legal proceedings at any time and that he has given Spamhaus options that don’t require payment.

“Even after the case was over, I offered Mr. Linford every opportunity to resolve this matter amicably.  I proposed several options to Mr. Linford’s attorneys that were both reasonable and fair to both parties,” said the post. “At the end of day, all we are trying to do is communicate with our customers without interference from Spamhaus.”

Someone posting under Linford’s name responded in part: “That’s extremely simple to do: quit hitting our spamtraps, quit spamming our users who report your spamming to us and to your ISPs who then throw you off for spamming.”

Professor Jonathan Ezor, director of Touro Law Center’s Institute for Business Law and Technology, who has been following the case very closely, said he has never seen two executives involved in a lawsuit go at it in public like this.

“Both CEOs are making factual statements in public in writing that could certainly come out in court,” he said. “And it isn’t clear from the context whether anyone is vetting these [statements] for exposure.”

Linford’s lawyer, Matthew M. Neumeier of Jenner & Block in Chicago declined to say whether or not he is counseling Linford to stop making public statements about the case.

“As you can imagine, my counseling to our client is not something that I can discuss,” Neumeier wrote in an e-mail. “Our opponent launched this volley and, frankly, it was somewhat surprising that he decided to take this approach.”

Linhardt said he couldn’t resist posting after reading some of the things that were being written about him on the discussion group.

“I’ve been trying to stay out of those boards, but just after they [Spamhaus] filed their appeal, I found some things he posted on that Nanae group that were so blatantly inaccurate, that it really compelled me to say something,” said Linhardt in a telephone interview. “He immediately responded and said I was a liar and it kind of devolved from there.”

Spamhaus’ Linford failed to respond to two e-mails asking for comment.