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US Judge Ruling in Favor of Spamhaus is No Victory
If you’ve been following the e360 v. Spamhaus case, you’ve probably heard that the Judge refused to order Spamhaus’s domain name suspended. If you haven’t been following it, here’s a short recap. American e360 filed suit against British Spamhaus for calling at least some of e360′s “opt-in marketing” activites “spamming” (you say “tomato . . .” ) and blacklisting them as part of the anti-spammer’s efforts to protect consumers and institutions. Spamhaus didn’t show up at the trial because it said a US court had no jurisdiction, and the judge entered a default judgment in favor of e360 in the amount of $11.7 million(!). When Spamhaus gave no indication it intended to pay, e360 asked the judge to order Spamhaus’s domain name pulled. The judge, as I was saying at the top of the paragraph, said no.
Good news for Spamhaus and everyone who hates spam, right? Right?!
Well, yes and no.
It’s good news for two reasons. First, Spamhaus is still operating. Spamhaus going down–even temporarily–would be likely to unleash a flood of spam on the Internet. Second, the judge called the remedy e360 was seeking far disproportionate to the injury. More importantly, he avoided the controversy of employing US jurisdiction over ICANN to reach across national boundaries and, basically, claim the power to exercise a measure of control over the entire Internet. (Which, for various reasons, would have pissed a lot of people off, believe me, but that’s a story for another article.)
Now the bad news. Spamhaus hasn’t “won” this case. It just got lucky that the judge refused to impose overbearing measures in an attempt to enforce the default judgment that’s still in effect. If e360 can come up with less outrageous idea, the judge may well order it–especially since judges hate having people thumb their noses at them. And the irony is, Spamhaus has a strong case; however, for some reason they’ve dug themselves into a deep hole by refusing to jump through the right legal hoops. I won’t go into into the legal procedural details (If you’re interested, this analysis by John Marshall Law School Adjunct Professor Matthew Prince is much better than I could do anyway; link via Spyware Sucks), but the short, non-technical version is this: Spamhaus initially ignored the state court suit because it said the US court had no jursidiction, and wound up with a default judgment in federal court, where Spamhaus asked to have the case transferred and may have admitted US jurisdiction by asking.
Spamhaus apparently now has new, high-powered US legal counsel, but its position is much weaker than it was at the start. It now has to convince the judge to set aside the default judgment and that it hasn’t conceded jurisdiction and thereby ruined its best argument. Both are probably possible, but the case is set up to be much more difficult than it might have been.
Perhaps the most disappointing aspect of how this case is evolving is that it seems to have turned into one based on legal procedural technicalities instead of one based on the very interesting and important issues involved, like the First Amendment limitations on spamming and anti-spamming and US control of the Internet through jurisdiction over ICANN. These issues have potentially far-reaching effects on the Internet and spam.