CyberTech Rambler

October 12, 2006

ICANN cannot (or will not) terminate spamhaus.org on court order?

Filed under: Uncategorized — ctrambler @ 2:34 pm

ICANN released a statement saying that it cannot terminate spamhaus.org domain name registration, even if a US court orders it to do so. Being the supremo of .org domain, it is strange that it believe it cannot do so. Its believe seems to be centered on authority and may be its contractual agreement with registrars rather than on technical grounds. Even so, it is difficult to see why there is no way to wiggle around the authority issue. If my memory serves me right, its predecessor suspended .yu domain under President Clinton’s executive order during the Kosovo war.

It is true that if ICANN does comply with the US court order to terminate spamhaus.org domain registration, it sends ripple down every countries, especially those who are unhappy that ICANN remains under the control of US government.

There are also legal procedural to overcome in the spammer vs Spamhaus.org case that give rise to this possibility of suspension of spamhaus.org domain in the first place. The spammers aim may be to generate as much controversy as possible to embarass spamhaus.org, and to give it as much trouble as it can think of, beside monetary damages.

Some observers criticize spamhaus.org behaviour in this case. It refuses to recognize US jurisdiction and cooperate with the court. It argues that it will open the floodgate to ligitation if it does, and that US court does not have jurisdiction over a UK company. Spamhaus.org’s desire to forestall litigations which it is financially ill fitted to handle is understandable, and its arguement over jurisdiction issues has merits:  Its registrar is Canadian (not in US jurisdiction) and with ICANN claiming no authority to suspend the domain name, it is difficult to see how  the suspension order is going to be enforced.

Having said all these, there is no need to bad-mouth the court, or the US judicial system does not win it any favour. It should had assisted the court in anyway it can without admiting jurisdiction and apparently it can. I am sure it can find friends with  organizations that are prepare to help it pro-bono (no fee). If it does, it demonstrates that its willingness to work with the court whatever it thinks of it. The way it “enlisted” ICANN in its fight shows it is savvy to political implication of its position, but nonetheless leave a bad taste in everyone’s mouth. ICANN seem to be dragged in, rather than a volunteer in the fight.  Spamhaus may be losing the moral high ground here… and this is a sad thing.

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