Spam Blacklists Still In Tunnel, But Is That Light Up Ahead?

A couple of recent court decisions are good news - no, great news - if you hate spam. Two compilers of anti-spam blacklists, Kaspersky Lab and Spamhaus, both had decisions go their way. But unfortunately, the Kaspersky decision, clearcut though it is, may not be enough to save Spamhaus.Almost a year ago I wrote a couple of blog entries about the suit against Spamhaus, the anti-spam blacklist creator, by e360Insight, an "email bulk marketer" (translate that for yourself, I don't need a lawsuit). I won't repeat it all here, just suffice it to say that I concluded Spamhaus operator Steve Linford had shot himself in the foot when he elected to refuse to answer the suit. The judge responded with a default judgment and asked e360Insight how much it wanted in damages. The company said it wanted $11.7 million, so that's what Judge Charles Kocoras of the U.S. District Court for the Northern District of Illinois awarded. (It was more complicated than that. There was an injunction against Spamhaus involved, and e360Insight even asked Judge Kocoras to yank Spamhaus' domain registration, which he declined to do.)

Spamhaus finally got a lawyer and filed an appeal, and last week a federal appeals court threw out the $11.7 million judgment. Immediately somebody called "ahah!" sniped at me with a comment to the blog entry that said, "Seems like the author of this article was wrong about [Linford's decision not to respond to the suit] being a mistake. The decision was overturned. . . . They don't owe a cent now. . . ."

Not so fast there, "ahah!" We don't know yet what Spamhaus owes, because the appeals court sent the case back to the original judge.

The appeals court decided Judge Kocoras had been wrong to accept without question e360Insight's number for the damages award. The decision remands the case to Judge Kocoras with instructions to reexamine his "overbroad" injunction against Spamhaus and "undertake an inquiry into the proof of damages."

Unfortunately, the appeals court also decided that Judge Cocoras had been correct to declare Spamhaus in default - the judgment of default stands and the case can't be reopened. That's a shame, because also last week Kaspersky Lab beat a similar suit on interesting grounds.

Kaspersky Lab is a security company that maintains its own form of blacklist that identifies programs as malware. Zango, a maker of such programs (shall we call it a "privacy reduction marketer"?), sued Kaspersky, demanding that its security software stop blocking Zango's programs and they be reclassified as "non-threatening."

The judge dismissed the case, ruling that Kaspersky was protected by the Communications Decency Act, which states that a provider or user of an interactive computer service shall not be held liable on account of any action voluntarily taken in good faith to restrict access to material that the provider or user considers to be "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable."

I know, malware isn't spam, and legal similarities between the Kaspersky and Spamhaus cases may be in the eye of the beholder. But an awful lot of the spam I get is lewd and lascivious, and I'll guarantee you 100 percent of it is objectionable.

In a second blog entry on the Spamhaus case I wrote, ". . . ultimately the Internet community needs to find a way to help Linford clarify the legality of Spamhaus' actions in blacklisting spammers. . . ."

Sure seems to me the Kaspersky decision should be an effective precedent the next time e360Insight goes to court.