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ICANN says it can't shut off Spamhaus.

October 11, 2006

10/11/2006 10:24:58 AM, by Eric Bangeman

ICANN says that it will not be taking any action in the case of e360insight v. Spamhaus regardless of the proposed order instructing it to suspend the Spamhaus domain. In a statement, the organization said it "cannot comply" with that or any other order instructing it to suspend a specific domain name because it "does not have either the ability or the authority to do so."

e360insight sued Spamhaus earlier this year over the antispam organization's blacklisting of the e-mail marketing firm, calling it a "fanatical, vigilante organization." The suit was filed in Illinois state court, but Spamhaus successfully argued that the case should be refiled in federal court. Once refiled, Spamhaus decided to not defend itself at all, saying that the US courts had no jurisdiction in the matter.

A default judgment was entered against Spamhaus for over $11 million, and the organization was instructed to remove e360insight from its blacklist. The group proceeded to ignore the court, saying that its decision was unenforceable. That led to the proposed order instructing ICANN to shutter the domain.

The threat of having Spamhaus go dark caught the attention not only of the antispam group, but those who rely on its blacklist to filter out over 50 billion spam messages per day. Spamhaus founder Steve Linford told Ars Technica that he was confident ICANN would fight the order, saying that the group "understands the effect" enforcing it would happen on the Internet. In the meantime, Spamhaus is "working with lawyers to find a way to both appeal the ruling and stop further nonsense by the spammer," said Linford.

Is ICANN taking a principled stand or merely looking to pass the buck? Although it is responsible for the DNS system undergirding the Internet, it is still subject to US law, and may not be able to duck a court order so easily. That could be why ICANN is pleading powerlessness in the case, saying that the only entity with the authority to suspend or place a hold on a domain is the "Internet registrar with whom the registrant has a contractual relationship—and in certain instances the Internet registry."

The Spamhaus domain is registered by Tucows, which is headquartered in Canada. If ICANN is able to successfully convince the court that it does not have the powers the court thinks it has, the responsibility for suspending the domain will fall to the Canadian company, making the question of enforcement of the judge's order a bit dicier.

It appears that the immediate threat of and its spam blacklists disappearing from the Internet in the near-term is small. However, the group is still in a tough place with regard to the case brought by e360insight. Appealing a default judgment is difficult, but it may be Spamhaus' best hope of extricating itself from what has become a stickier situation than it anticipated.



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