more on ICANN ordered by Illinois court to suspend spamhaus.org

[David Farber <dave () farber net>]

Begin forwarded message:

From: Jonathan Ezor <jezor () tourolaw edu>
Date: October 11, 2006 12:58:38 PM EDT
To: Dave Crocker <dcrocker () bbiw net>
Cc: David Farber <dave () farber net>
Subject: RE: [IP] more on ICANN ordered by Illinois court to suspend  
spamhaus.org


Dave (and the other distinguished signatories) and Dave F. (our IP  
host),

I am not pleased with having my client's name mentioned in the  
context of
this discussion, and I would hope that it does not go out over the IP  
list.
I did not mention the client, nor was its name and background (or  
alleged
activity, which was mischaracterized) relevant to the overall  
discussion, nor
do you have all the facts that I have (and cannot share due to my  
obligations
to my client).

Setting that aside, I appreciate the chance to discuss and even  
debate these
issues with those of you who are on the front lines of the fight against
spam.  We may continue to disagree on Spamhaus' particular approach  
(and in
my mind, a faq answer saying that Spamhaus will "pay little  
attention" to my
request for review of a client's status on a block list is caustic,  
as were
the communications I received, but that's a personal opinion), or the
objectivity of its standards, or the facts of the e360 case (about  
which I
know only what is in the public record from both sides).  My article  
is not
about Spamhaus or the e360 situation; it examines the reality of spam
filters, the possibility of wrongful inclusion of a company within  
one, and
what remedies under U.S. law a true non-spammer might have if it is  
unable to
get redress from the filter vendor any other way.  It looks at the
already-litigated cases, examines the arguments (which primarily  
focus on 47
USC 230 and its safe harbor, which probably wouldn't apply to a
self-generated list like those of Spamhaus), and considers some other  
legal
theories and how they might be evaluated.

I've said it before, and I'll say it here: I completely oppose  
unsolicited
bulk commercial e-mail, and not just that defined by the (rather weak)
CAN-SPAM Act.  I said so in my book "Clicking Through" six years ago,  
I have
so advised every client who's asked me about it, and I've gone on record
about it.  Spamming is just a bad idea, and leads to trouble.  I use  
multiple
levels of block lists and filters daily (and in fact, my employer,  
Touro Law
Center, utilizes Spamhaus as it turns out for at least some of its spam
fighting, so I benefit from its efforts myself), and have spoken in  
detail
with sysadmins about the battle, its costs, and the impact on  
infrastructure
and users alike.  At the same time, though, when any organization or  
vendor
takes on the job of defining spam and establishing filters for multiple
millions of users, I believe it has an ethical obligation to be  
responsible,
professional, objective, diligent, and take reports of its errors  
seriously.
It's true of Symantec; it's true of Microsoft; it's true of  
Spamhaus.  Yes,
spammers will tie up the courts and hire lawyers to make threats, but
consider that legitimately blocked non-spammers may have to use the same
courts and lawyers to get assistance when a block list vendor refuses  
to make
changes.

If any of you is ever in the Long Island, NY area and would like to  
speak to
my students about the real world issues relating to spam, just give  
the word
and I'll make it happen.  Thanks. {Jonathan}

-------------------

Prof. Jonathan I. Ezor
Assistant Professor of Law and Technology
Director, Institute for Business, Law and Technology (IBLT)
Touro Law Center
300 Nassau Road, Huntington, NY 11743
Tel: 631-421-2244 x412  Fax: 516-977-3001
e-mail: jezor () tourolaw edu
-----Original Message-----
From: Dave Crocker [mailto:dcrocker () bbiw net]
Sent: Wednesday, October 11, 2006 11:57 AM
To: David Farber; ip () v2 listbox com
Cc: Jonathan Ezor
Subject: Re: [IP] more on ICANN ordered by Illinois court to suspend
spamhaus.org
Importance: High


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