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The Spamhaus-e360Insight Case Isn't Just One Bad Decision, It's Several

A federal court ruling last month in favor of an "e-mail bulk marketer" appears to be a spectacularly bad decision. But it's hardly the only one in the case. Spamhaus sparkplug Steve Linford made another when he decided not to defend against the suit. But the judge may make the worst decision of all if he follows through on a proposal to order ICANN to pull Spamhaus' domain name to force Spamhaus to comply.

Judge Charles Kocoras of the U.S. District Court for the Northern District of Illinois made what certainly appears to be a spectacularly unpopular decision last month when he ruled against Spamhaus, the U.K. nonprofit that compiles a widely used blacklist of spammers, in a suit brought by David Linhardt, who operates e360insight, which is either a legitimate e-mail marketing company or a particularly notorious spammer depending on who you believe. Apparently Judge Kocoras believed Linhardt because he slapped Spamhaus with an $11.7 million judgment.

I think Judge Kocoras made a terrible decision in ruling that he had jurisdiction over Spamhaus, which has no U.S. operations.

But Spamhaus' Steve Linford made an equally bad decision. At first he decided to accept the judge's jurisdiction and defend against the suit, then changed his mind and withdrew. The judge refused to accept the withdrawal and issued a summary judgment for e360insight. (Note that he didn't rule that e360insight is pure as the driven snow, only that Spamhaus lost by default when it didn't show up to play.)

The reasons for Linford's strategy undoubtedly lie in a 2003 suit brought against Spamhaus and others by an anonymous group of plaintiffs, presumably spammers, fronted by lawyer Mark Felstein. Linford et al. won a stunning victory in that case with a very clever strategy. Their lawyer moved for full discovery on all the unknown plaintiffs, and they ran for the dark like rats, leaving their lawyer stuck filing for dismissal of the suit, which was granted "with prejudice," meaning the same plaintiffs were barred from suing the same defendants for the same reasons in the future.

But the victory cost Linford and his co-defendants a great deal in legal fees. While he might have employed the same strategy in the e360insight suit and used discovery as a counterweapon, he may have decided he just couldn't afford it. Denying jurisdiction looked cheaper.

But it allowed David Linhardt to buy a decision on the cheap. If Judge Kocoras had accepted Spamhaus' contention that it could be sued only in British courts, that would have ended the matter. But by issuing the judgment, he's obliged to make even more bad law by trying to enforce it. Observers are predicting that if he carries out his threat to involve ICANN, the international governing body for the Internet that's based purely by coincidence in the U.S., he will precipitate a "constitutional crisis" that could damage U.S. credibility in the Internet community. ICANN quickly denied that it had the authority to do what the judge wanted.

So far Judge Kocoras' action is only proposed. Hopefully he will realize its potential for damage and withdraw it. But the Internet community needs a definitive answer on spam. Perhaps all this will lead to a good decision. Linford may not have pockets deep enough to defend against a spammer suit, but there are organizations that do. I'd love to hear the Electronic Frontier Foundation and the First Amendment Lawyers Association and the American Civil Liberties Union announce that they'll join forces to defend the next spammer-vs.-blacklist suit. There's plenty of merit on the blacklisters' side--read the Spamhaus FAQ and do a little research on SLAPP lawsuits--and a decision that uses these legal tools to curtail the use of lawsuits as intimidation, which is clearly what's at work here, is really necessary.

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