Lawsuit threatens Spamhaus with shutdown

After winning a US$11.7 million judgment against the Spamhaus Project Ltd., e-mail marketer e360 Insight LLC is asking a federal court to shut down the anti-spam service.

E360 has filed a proposed court order with the U.S. District Court for the Northern District of Illinois that calls on the organizations responsible for registering the Spamhaus.org Internet address to suspend the organization's Internet service. Both the Internet Corporation for Assigned Names and Numbers (ICANN) and Tucows Inc., the Spamhaus.org registrar, are named in the order. 

The proposal follows a Sept. 13 ruling from Judge Charles Kocoras ordering Spamhaus to pay damages and stop listing e360 Insight in its database of known spammers. Spamhaus, based in London, initially ignored the judgment saying that it could not be enforced in the U.K.

But observers worry that e360's proposal could be approved by the judge, possibly resulting in a shut down of the service.

It is common for the judge to ask the plaintiff to draw up a proposed order such as this in cases where the defendant has ignored an earlier order, said Jeff Norman, a partner with the intellectual property division of Chicago law firm Kirkland Ellis LLP. "In a typical case, the judge will just enter the proposed order if it's consistent with what he says."

"At this point, I imagine the judge is pretty frustrated with [Spamhaus] and is unlikely to scale the order back on his own," he said. "They're in a pretty bad bind."

If Spamhaus is shut down, it would be bad news for e-mail users. Spam now makes up about 90 percent of all e-mail and Spamhaus reckons that it helps block between 8 billion and 10 billion of these messages per day.

The organization's spammer blacklist is used by several technology vendors including Microsoft Corp.

E360's proposal sparked concerns of a showdown between the U.S. court and ICANN.

ICANN, for its part, has said that only registrars can suspend individual domain names and that there is no way it could enforce the proposed court order. But as the organization responsible for the Internet's top-level domains, ICANN does have the authority to accredit registrars like Tucows, based in Toronto. 

Norman believes that Spamhaus made a critical legal error by initially arguing its case in court and then claiming that U.S. courts had no jurisdiction over the matter. "It's just a blunder," he said. "Should people who care about Spamhaus be worried? I think the answer to that is clearly, 'Yes'."

Spamhaus appears to have recognized that it is in a jam. On Friday it filed a notice with the court, saying that it intends to appeal the ruling.

"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." Spamhaus said in a note on its Web site.

"Spamhaus is, however, concerned at how far a U.S. court will go before asking itself if it has jurisdiction, and is intending to appeal the ruling in order to stamp out further attempts by spammers to abuse the U.S. court system in this way."

E360 declined to comment for this story.