A federal court has issued a proposed order which would direct ICANN to suspend the spamhaus.org domain after the spam blacklist site thumbed its nose at a $11.7 million default judgment last month. Spamhaus was sued by e360insight, a company that had been blacklisted by Spamhaus for sending unsolicited commercial e-mail. Although Spamhaus initially filed a response to the complaint, it decided not to participate any further in the case, a decision that led to the default judgment.

Spamhaus believes that as a UK corporation, the US District Court for the Northern District of Illinois, Eastern Division was the wrong venue to try a case. Its position is that US default judgments have no jurisdiction in the UK and that the case would need to be refiled in that country for e360insight to get any satisfaction. "Although meaningless for Spamhaus, which as a British organization not subject to Illinois court orders is listing Linhardt's company E360 Insight on its SBL spam blacklist as usual, the Illinois ruling shows that U.S. courts can be bamboozled by spammers with ease," said the organization when the default judgment was issued.

Unfortunately, Spamhaus neglected to make the argument that it is not subject to US court orders at the outset the case. Had it done so, e360insight may have been forced to pursue Spamhaus in the UK court system. Instead, when the case was originally filed in state court, the blacklisting group successfully argued that it should be moved the federal court. It was only that after the proceedings began in the District Court that Spamhaus decided not fight it.

Now, Spamhaus is faced with a contempt of court finding, and as a result, is looking at some king-sized headaches. ICANN, which operates in the US under the jurisdiction of the US Commerce Department, will have to at least consider complying with the order, should it become final. With the influence of the US government over ICANN having been hotly debated, ICANN might wish to ignore the ruling in an attempt to demonstrate its independence. However, that may not be a workable option, as the organization is subject to US law.

Having its domain name pulled out from underneath it would put a serious crimp in Spamhaus' operations. It's possible that the organization could try and operate solely via IP addresses, but the court may be able to stop that strategy as well. Shutting down and reorganizing under a new name typically doesn't work too well eitherjust ask Sharman Networks.

Spamhaus is confident that ICANN won't pull the plug on its domain. Founder Steve Linford told Ars that doing so would have a big effect on "both the Internet and on millions of users" and that the government "would step in" before it happened. More importantly, he believes ICANN will fight the order. "ICANN understands the effect," said Linford. "Spamhaus.org blocks 50 billion spam messages per day. The effect of suddenly not blocking it would mean that volume of spam hits mail server queues all over the world... an effect that would cause serious problems."

It may be that Spamhouse bit off more than it can chew with its decision to pull out of the original court proceedings and ignore the court. The group still has a chance to respond to the proposed order and make a case for the judge to change his mind. That's Spamhaus' plan, according to Linford, who told Ars that "we are working with lawyers to find a way to both appeal the ruling and stop further nonsense by the spammer."

If not, Spamhaus is faced with a multimillion-dollar judgment and the possibility of losing its domain name, outcomes that could have been avoided had it showed up and argued that the US courts had no jurisdiction in the case. At this point, its best chance may be to appeal to the US Court of Appeals for the Seventh Circuit, but being in the position of having to appeal a default judgment is not a good place from which to start.

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