9 October 2006 — ICANN has been advised that a Proposed Order referencing ICANN has been submitted to the court in the matter entitled e360Insight, LLC et al. v. The Spamhaus Project, Case No. 06 CV 3958. This lawsuit is currently pending in the United States District Court, Northern District of Illinois.
Please note that ICANN is not a party to this action and no order has been issued in this matter requiring any action by ICANN. Additionally, 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.
Based on ICANN's review of the record in the matter, it appears that e360Insight ("e360") filed suit against The Spamhaus Project ("Spamhaus") on 21 June 2006. In the complaint, e360 sought equitable relief by way of an injunction (a court order requiring a party to do or refrain from doing a particular act) as, well as monetary damages, alleging that Spamhaus: (1) "erroneously and repeatedly placed Plaintiffs on its Register of Known Spam Operations (the ROSKO list), and then (2) wrongfully coerced Plaintiffs' business partners to refrain from doing business with Plaintiffs . . . ." Complaint at para. 1.
As the Court stated, "[t]hough Spamhaus initially defended the action, it subsequently withdrew its answer and its attorneys withdrew their appearance. [Spamhaus] has taken no further action to challenge Plaintiff's [e360's] allegations." Court Order, 13 Sept. 2006.
According to the Court's file, Spamhaus failed to respond, the Court entered a default judgment against Spamhaus in the amount of $11,715,000.00 plus $1,971.05 in litigation costs. On that same day, the court entered an order for equitable relief (in the form of a "permanent injunction") against Spamhaus requiring, among other things, that Spamhaus remove e360 from the ROSKO list and post a message on its website at www.spamhaus.org indicating that Plaintiffs were erroneously listed on the website as spammers. Court Order, 13 Sept. 2006.
ICANN has no direct knowledge as to the merits of the claim by e360 against Spamhaus, the reasons why Spamhaus withdrew its answer, or why Spamhaus took no further action to defend the matter.
On 29 September 2006, e360 filed a motion alleging that Spamhaus failed to comply with the Court's previous order and asked the court to suspend www.spamhaus.org, until Spamhaus complies with the Court's previous order.
There was a hearing on 5 October 2006, and following that hearing e360 submitted an order for the Court's review. Minute Order, 5 Oct. 2006.
E360 electronically submitted a proposed order to the court for its review which, if signed, would call for Tucows (Spamhaus' Registrar) and/or ICANN to suspend or place a client hold on www.spamhaus.org.
Even if ICANN were properly brought before the court in this matter, which ICANN has not been, ICANN cannot comply with any order requiring it to suspend or place a client hold on Spamhaus.org or any specific domain name because ICANN does not have either the ability or the authority to do so. Only the Internet registrar with whom the registrant has a contractual relationship - and in certain instances the Internet registry - can suspend an individual domain name.
ICANN has made this posting in response to community interest expressed on this topic and will continue to monitor this matter.