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ICANN Grants Temporary Reprieve to Spamhaus
daringone writes "ICANN released a statement that says they "...cannot comply with any order requiring it to suspend or place a client hold on Spamhaus.org or any specific domain name" They do, however leave the door open for the registrar that registered the domain name to then be forced to turn the lights off for Spamhaus."
Which while annoying briefly, might be a Good Thing(tm). Face it, those who use services like Spamhaus probably don't realize *how much* spam there is. If your government official gets 1 spam in 20, well, they thing "just hit delete" works fine if their total spam load is 1,000 emails a day (50 spams get through). If, on the other hand, they suddenly are hit with the full brunt of it, there may be changes. Imagine Grandma who gets 5 or 6 spams a week after her ISP's filters (which probably are quite effective). And then suddenly getting 600 a day. It may open up the eyes of those who don't believe it to be a problem because they're sitting behind a wall protecting them. It's just we've all been sitting "behind the wall" to see true increases. When the amount of mail that makes it past the filters doubles, total traffic may have increased 10 times or more.
This might encourage development of a new email infrastructure that gets rapidly adopted by the Internet, suddenly faced with the realities of how much spam there really is in the world.
I for one, would love to see the end of poorly-configured MTAs who send me bounce emails that are improperly formatted. Of all things an MTA should do, is to generate proper emails! Otherwise they're contributing to the spam problem (I've got hundreds all addressed as "Mailer Daemon " and even more from antivirus/antispam systems, and nevermind whitelist systems. They all seem to contribute to the spam problem by generating even more email in response to email.)
Where exactly was the supposed crime commited exactly?
It does exempt them from Illinois law if the act never happened in Illinois.
The judge is just following the law, and, indeed, the constitution. This has nothing to do with "freedom of speech". Spamhaus asked for a civil suit to be moved to Federal Court, and then failed to defend themselves. Wham. Default judgement.
It doesn't matter whether Spamhaus is being sued for describing Ted Kaczynski or "Spamford" Wallace as a spammer. It doesn't matter if this is Spamhaus or SPEWS. It doesn't matter if spam is a nuisance or welcomed by millions of people across the world. They failed to turn up. They're subject to a default judgement and legal sanctions to prevent them from continuing the offense.
That's what the law and constitution says is the correct response, and therefore, while it might be unpopular, this is the correct thing for the judge to do. For all the criticisms of judges "legislating from the bench", it seems that the majority of people would rather they do that than follow the law. (Witness SCOTUS's response to the Connecticut eminent-domain thing. For some reason, everyone decided it was SCOTUS at fault. The real problem was a vague phrase in the constitution, an out of control local government, and state and Federal legislatures who'd failed to impose legal limits. But everyone blamed the judges.)
The judge needs to follow the law, even when it's unpopular. The legislature needs to be told to deal with this fiasco. And Spamhaus needs to be more careful and less stupid and contradictory in their ways of dealing with courts.
You are not alone. This is not normal. None of this is normal.
In many ways, I am very happy about ICANN's decision. They are recognizing that the internet should not be controlled by politics or a single country/government. If ICANN had blocked the domain, politicans would start to think that they controlled the internet (although some do think that way...)
It's a bit different than that.
Spamhaus is not based in the USA, and has no offices in the USA, so therefore the court has no jurisdiction to sieze anything from them. It's even dubious that the judge has the right to sieze the domain name, as it's registered with another non-US company. ICANN is just saying "Don't bother slapping us with a subpoena because we can't do it anyway."
This has much further reaching implications than it may seem at first. First Spamhaus, then online gambling sites that are perfectly legal in other countries. After that will come torrent sites, crack sites or anyone who does anything that might be illegal in the USA but legal elsewhere.
It's a slippery slope.
Why throw the junk mail away when you can do this instead.
u nk_the_junk
http://www.thebestpageintheuniverse.net/c.cgi?u=j
While it's technically true that they could get around it, legally, it's not a great idea.
ICANN's contention seems to be that even if ordered to remove the record, its not technically possible for them. Only the registrar (TUCOWS in this case) could remove the registration.
Is this accurate? Don't the glue records get published through ICANN, and couldn't they remove them?
Of course I am in favor of Spamhaus and against SPAMers...I'm just curious if this is a legal ploy on ICANN's part to help Spamhaus (which I would applaud), or if its just ICANN telling the truth (which I would also applaud...I'm easy to please).
Also, if true, couldn't Spamhaus just move their registrar from TUCOWS (Canada?) to a registrar in a less US court friendly country where any order to remove the registration could be ignored?
I think the likely choices are either Tucows (as the registrar) or the Public Interest Registry, who is the actual maintainance organization for the .org TLD.
I'm not sure how PIR is structured and how responsive they would be to a U.S. court order -- a lot of their board of directors seem to be European, although their mailing address is in Reston, VA, and I'm not sure where they're officially incorporated -- but Tucows is probably in a position where they have a lot to lose if they ignored it.
Still, can a registrar really "pull" a domain? It's the PIR that maintains the root DNS servers for the TLD, so if they decide to just not delete spamhaus's DNS entry, then the domain stays active. Tucows basically sends requests to the PIR to add new DNS records when someone registers a new domain, but they don't (at least, I don't think they do) actually operate the servers themselves. What is Tucows supposed to actually do?
It would be interesting if PIR just said "no" to the order, once it goes to them from Tucows, and refused to do it. There could be some very interesting precedent as a result of this: should a U.S. court have the authority to pull a domain belonging to a non-U.S. corporation or citizen? Should a German court be able to order a domain for a U.S. corporation or citizen pulled? How about a Saudi Arabian court?
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12 Second History
4
Spamhaus listed E360 as spammers
E360 sued Spamhaus in an Illinois court, saying that they weren't spammers.
Spamhaus said Illinois court has no jurisdiction, take it to Federal courts.
E360 sued Spamhaus in a Federal court, saying that they weren't spammers.
Spamhaus doesn't show up to Federal court, despite having accepted their jurisdiction.
E360 won a default judgement because Spamhaus didn't show up.
Spamhaus still said the court had no authority and ignored the judgement.
E360 filed for an injunction, asking the court to order either ICANN or the domain registrar to block the Spamhaus domain because Spamhaus ignored the judgement.
Check out this Illinois lawyer's take on the matter for the full(er) explanation:
http://blogs.securiteam.com/index.php/archives/66
--
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Wait... I'm fairly sure Tucows is Canadian, I wonder if they can get a Canadian company to enforce an american court order against a british company.
(Witness SCOTUS's response to the Connecticut eminent-domain thing. For some reason, everyone decided it was SCOTUS at fault. The real problem was a vague phrase in the constitution, an out of control local government, and state and Federal legislatures who'd failed to impose legal limits. But everyone blamed the judges.)
The judge needs to follow the law, even when it's unpopular.
Reminds me of the Dread Scott v. Sandford case. I think it was Chief Justice Taney who was a die hard abolitionist (anti-slavery) but sided with the majority as, while he didn't believe in slavery, he believed the constitution and laws pertaining to the case supported it. Which, turned out to be a severe blow to the abolitionit movement.
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Couldn't an independant organization just register the name and direct it to spamhaus's servers? Wouldn't that make it impossible to revoke the domain name?
Here's an idea if Spamhaus ends up deciding to comply with removing e360 from their spammer list.
Create a "People Who Sued Us" list. Make this list functionally similar to the normal ROSKO list, allowing IT admins to choose to use the PWSU list for e-mail filtering purposes. Chances are that anyone on the PWSU list is a known spammer, since only a known spammer would have to resort to shady legal practices to get removed from ROSKO. However, the PWSU list is based only on the easily provable fact of someone suing Spamhaus, meaning that nobody on that list could complain that they were being treated unjustly.
They lacked restraint when they showed up and asked it be moved to federal court from a state court. Doing that was an acknowledgement that federal courts had jurisdiction. They should have either not shown up at all, or showed up and said what you did.
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Just an FYI.
In these situations things just keep on coming and coming.
Judges and the judicial system are set up so that court orders can be enforced. Usually against reluctant subjects, so dealing with whiners is not new to them.
Even in civil cases you can get a cop with a gun to go into a business and help you settle things up if the judge orders it. Unless anti-spam people think tucows is going to arm its US office and start shooting people, they are going to comply with this order.
Spamhaus had an easy out, make a special appearance and talk about jurisdiction. Or they could have moved it to federal and fought it on the merits, which would have likely established a positive precedent in the US for voluntary opt-in to these types of published opinion blacklists. Instead they try to game the legal system in the US. That's fine, but they are likely to lose their ability to work within the US by doing so.
If a UK judge orders their domain shut down and they comply with that, but then just switch domains and keep right on going, the judge could hold them in criminal contempt of the court, depending on how the ruling was worded and how severe the cout thinks the infraction is.
In the US, a person is either held in contempt or not, but in the UK judicial system, a person can be in civil contempt or criminal contempt. Criminal contempt charges (from what I understand; IANAL) can be very serious, entailing heavy fines and sometimes jail time.
This all seems to be moot, as the UK doesn't seem to have any great interest in prosecuting anybody over this case. However, that is the hypothetical situation the GP was talking about.
I believe this has a lot to do with net neutrality as well. If ICANN pulls the plug they would be violating it.