E360 Shaking Down the Spamhaus? - Whose Court is it Anyway?

Spamhaus has headquarters in London. It insists that it does not do business in the U.S. It does have a user base of around 650 million, and those using its lists block 50 billion spam messages a day. Some of those users are located in the U.S.; they include the White House and the U.S. Army. The European Parliament also depends on Spamhaus. Indeed, Spamhaus claims that more than 90 percent of all emails sent are spam; shutting the organization down would, therefore, be likely to have an adverse effect on Internet traffic worldwide.

For the moment, let's put the implications of a Spamhaus shutdown to the side. If Spamhaus is indeed a London firm that does not do business in the U.S., then a ruling by an Illinois court cannot have any effect on it because the court has no jurisdiction over the firm. It is also questionable whether it might have any jurisdiction over Tucows, Spamhaus' registrar, because Tucows is based out of Canada (sharing a continent is not the same thing as sharing a legal system after all). So far, so good...but this is where it gets hairy.

The proposed ruling attempted to drag ICANN into the case. For its part, ICANN tried to stay as far out of it as possible. In anticipation, it published a statement on its web site saying that "ICANN cannot comply with any order requiring it to suspend Spamhaus.org or any specific domain name because ICANN does not have either the ability or the authority to do so." The problem is, ICANN is based within the U.S., and may find itself in the position of having to comply with U.S. law. It can claim it doesn't have the authority or the ability to do so directly - but it does have the power to anoint registrars, including Tucows. Does anyone else see where this could end up -- if not in this case, then some other case?

Part of the problem, too, is that Spamhaus may have mishandled the jurisdiction issue. Matthew Prince, an adjunct professor of law at john Marshall Law School and CEO of Unspam Technologies, notes that Spamhaus switched strategies in midstream. "Spamhaus may have waived personal jurisdiction as a defense early one in the case when they not only appeared, but then asked for the case to be removed from state court...and moved to federal district court. Arguably...doing so inherently acknowledged the jurisdiction of the federal court."

Next: What Does This Mean? >>
 

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