Spamhaus case could test ICANN

Internet experts are worried that a U.S. court decision against antispam black-lister Spamhaus Project Ltd. could trigger a "constitutional crisis" for the Internet.

Last month, the U.S. District Court for the Northern District of Illinois ruled against the antispam project in a lawsuit brought by e-mail marketer E360Insight LLC. The court ordered Spamhaus to remove the company from its database of spammers and to pay US$11.7 million in damages, but Spamhaus initially ignored the ruling, saying that the U.S. court had no jurisdiction over the U.K.-based project.

On Friday E360Insight issued a proposed order calling on both the Spamhaus.org domain name registrar, Tucows Inc., and the Internet Corporation for Assigned Names and Numbers (ICANN) to pull the project's domain name, a move that would shut down the Spamhaus Web site. That proposed order can be found here: http://www.spamhaus.org/archive/legal/e360/kocoras_order_6_10.pdf

Though the order is only proposed, and does not have the force of law, observers worry that any attempt by U.S. courts to exert control over ICANN could be bad for the Internet.

ICANN, in Marina del Rey, California, has already come under fire for lacking transparency and being U.S.-centric.

"It's a delicate time for ICANN right now," said David McGuire, director of communications with the Center for Democracy and Technology (CDT), a public interest group focused on Internet issues. "If a court were to order ICANN to remove a domain name, we think that would be a bad precedent because making ICANN a tool of the U.S. legal system in matters such as these would sidetrack ICANN from its very important duties."

The CDT has issued a statement on the case, which can be found here: http://www.cdt.org/press/20061012press.php

McGuire believes that companies in e360's position should go to U.K. courts to ask them to enforce the U.S. court's judgement, or, failing that, approach the domain registrar.

ICANN has agreed that only registrars can suspend individual domain names. It believes that there is no way it could enforce the proposed court order. But as the organization responsible for the Internet's top-level domains, ICANN does have the authority to accredit registrars like Tucows, based in Toronto. ICANN's statement on the proposed order can be found here: http://www.icann.org/announcements/announcement-10oct06.htm

Princeton University's Edward Felten believes that it is possible that ICANN could be forced to comply with this type of court order.

"Suppose a U.S. court ordered ICANN to yank a prominent .com name belonging to a non-U.S. company," wrote Felten, the director of Princeton's Center for Information Technology Policy, in a blog posting. "ICANN could fight but being based in the US it would probably have to comply in the end." Felten's blog can be found here: http://www.freedom-to-tinker.com/?p=1075

"Such a decision, if seen as unfair outside the U.S., could trigger a sort of constitutional crisis for the Net," he added. "The result wouldn't be pretty."

Tucows, for its part, says that it has been asked to remove domain names in the past. But Vice President of Marketing Ken Schafer declined to comment on whether his company planned to comply with the proposed order. "Nobody's asked us to do anything," he said. "Right now it's just statements flying around."

Spamhaus says that the ruling shows how U.S. courts can be "bamboozled" by spammers and that it plans to appeal the court ruling "in order to stamp out further attempts by spammers to abuse the U.S. court system in this way." Representatives from the organization were not immediately available to comment for this story. The Spamhaus statement on this matter can be found here: http://www.spamhaus.org/legal/answer.lasso?ref=3