[TELECOM Digest Editor's Note: In this reply to Mark Crispin, I try to
address his concerns as per his article elsewhere in this issue. PAT]
From: Mark Crispin <MRC@cac.washington.edu>
Subject: Re: My Space Sues Colorado Man for Spamming
Date: Wed, 24 Jan 2007 17:18:55 -0800
Organization: Networks & Distributed Computing
On Tue, 23 Jan 2007, Mark Crispin wrote:
> You know, Mark, it gets really irritating listening to you and the
> other spam enablers continually apologizing for ICANN's so-called
> limitations. And everything is always someone else's fault, which
> is the main reason spam/scam is at an all-time high on the net; the
> fact that spam enablers like yourself REFUSE to use realistic
> approaches to stopping it. Why don't you begin trying to work along
> with other netizens instead of continually throwing up road blocks
> everywhere? PAT]
PAT replies: Actually, PAT appended to the original comment by Mark
Crispin, it was not 'Mark Crispin wrote'.
You know nothing about what I have done (and do on an ongoing
basis) to fight spam. Yet you seem to have no compunction
about flinging dung as if you were a chimpanzee at the zoo.
PAT Replies: Anyone can Google anyone else. Googling tells me quite a bit about
you. Try Googling either myself and/or TELECOM Digest to see how long I
have been in business.
It may give you emotional satisfaction, but all you accomplish
is to make people ignore you.
PAT Replies: Well, I dunno ... you don't ignore me; in fact you
frequently respond to me.
You should be glad that ICANN has no authority to do as you
suggest. Not long ago, Illinos District Court judge
Charles Kocoras ruled that UK anti-spam organization
spamhaus.org was "under Illinois jurisdiction",
ordered Spamhaus to pay David Linhardt (a notorious
Chicago spammer) $11.7 million, and actually
considered ordering ICANN to pull Spamhaus' DNS
record. As ICANN stated in
http://www.icann.org/announcements/announcement-10oct06.htm
"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."
PAT replies: I am aware of that case, and if David Lindhardt had been
a bit more sophisticated, -- (and do not misunderstand; I am glad he
knows very little) -- his next step, after receiving that kind of
response from ICANN would have been to go to Chancery Court -- a court
of equity and a place where one goes to obtain 'special remedies'. If
*I* were David Lindhardt, with judgment in hand, I would have
petitioned the court to place ICANN in receivership; a limited
receivership for the purpose of supervising the employees of ICANN, to
assure they followed the orders of the court.
If ICANN claimed they were -unwilling- to obey the court's order, they
would have been required to do so. If ICANN claimed they were -unable
technically- to obey the court's order, then an examination of their
books and records and technical practices would have been in order.
(This works sort of like 'extradition'. In a criminal case, if the
person comes along quietly, then no extradition is required. If the
accused refuses to come along quietly, then an appeal is made to the
governor of his state; if the governor agrees with your request then
the person still comes along with you. Of course the distant governor
_may_ refuse to send the party along. But you know what? I have never
seen that happen. Politicians and judges are too busy sucking up to
each other to refuse to sign off on an extradition, and they would not
want the same thing to happen to them, so they go with the
request. The process of having one state interject itself into another
state's matters in a civil case is sort of handled the same
way. ICANN probably would refuse voluntary intrusion by a state court
in another jurisdiction, but then all the news reporters would start
stirring up the pot [i.e. why are they hiding from the law, etc], or
as the lady who runs our local jailhouse here in Independence once
said to me, "no one likes an asshole"; so to keep the stench down,
ICANN would probably consent to volutarily being audited by a
receiever. Either that, or deal legally with why they should not be
thus treated for many months/years after it would otherwise be a dead
issue.)
Anyhow, ICANN imposes upon the registrars, do they not? And in those
contracts which impose upon the registrars, there are certain
provisions; what about a provision which allows ICANN to cease doing
business at any time for any reason with any registrar or customers of
that registrar? PUT IT IN THE CONTRACT and/or ANY REVISIONS OF THE
CONTRACT.
Plenty of us who know a few things on this topic would be glad to say
that ICANN's relationship with the registrars is to collect money on a
per-capita basis from each customer of the registrar. So ICANN can
'force' any registrar to do ICANN's bidding; in this instance, ICANN
has been instructed by the court to attend to all technical details to
assure the removal of Spamhaus' entry. The 'receiver' will supervise
all that.
In some jurisdictions, those people employed by the court to attend to
its business are not called 'Receivers', but rather 'Masters' or
'Special Masters' of a given proceeding then in progress. These
'masters' or 'receivers' are experts in their field of endeavor, they
are usually skilled auditors (in situations where the winner of a
lawsuit asks for money but the losing party refuses to pay it; the
'receiver' knows exactly where to look for the money) where a 'master'
tends to be more technically competent. In this instance the 'master'
probably would know the internet inside and out (more so than just
your average state court judge). Its one thing to (like ICANN) sit on the
side out in California or somewhere and claim 'it cannot be done' and
a totally different thing to have an expert (the court's 'master')
examine your computers, your files, the contract people sign, etc, and
report his/her findings back directly to the court. Believe me, you do
NOT want a 'receiver' or a 'master' appointed by the court to be
snooping around your business because of your recalcitrance to obey
the orders of the court.
Remember, a 'receiver' is appointed in Chancery Court. As the winner
in a lawsuit, the loser has stalled you in making good. You take your
paperwork and go to Chancery and ask that judge to apply a 'special
remedy'. ("Judge X gave me a judgment for Z dollars, in an effort to
avoid payment of the judgment, the defendant took all the money out of
the bank and secreted the money on his person or wherever.") That is
how those 'special remedy' requests are usually phrased.
If the Chancery judge agrees with you, then you will get the
special remedy. That is what Lindhardt _should_ have done; IMO he gave
up to easily, but then, he is just a dumb spammer.
If matters were otherwise, you might have the people who you
"last laugh" turning around and getting court orders to have
telecom-digest and/or comp.dcom.telecom deleted.
Never, ever, overlook the Law Of Unintended Consequences.
-- Mark --
http://staff.washington.edu/mrc
Science does not emerge from voting, party politics, or public debate.
Si vis pacem, para bellum.
PAT replies: Certainly, the Law of Unintended Consequences is or can
be a very severe law, but you are mixing apples and oranges here. In
my Last Laugh I editorially mock certain individuals or companies, and
my free speech is or should be inviolate. Editorial 'free speech' is
given far greater latitude than 'commercial speech' which is what
Mr. Lindhardt is or was attempting to employ. Commercial speech does
not get quite the freedom given to Editorial Speech. I mean, you knew
that, right? I frankly cannot see any successful attempts to close
down Telecom Digest since the total context of the speech is so much
different. Someone could _try_ to close telecom on the basis of not
liking the speech being given, but I cannot see them actually being
successful at it. On the other hand, the commercial speeches given by
Lindhardt (and others of his ilk) have been seriously considered for
censoring. How he got as far as he did with it (an actual judgment in
hand ordering payment from Spamhaus) is a mystery to me. The actual
collection or implementation of the judgment thus obtained is a
different matter altogther however; it can be done as I explained
above.
Do you recall the case a few months ago in Brazil where the young
couple went to the court to complain about personal photographs of
the lady making their way to MySpace? Judge ordered the pictures
removed, My Space failed to comply. So the young couple went to the
essence of 'special remedies' in that country and got the judge to
order all telcos in Brazil to quit handling any/all MySpace traffic
in or our of Brazil. There is more than one way to skin a cat, as
the saying goes.
PAT
TELECOM Digest Editor (ptownson@massis.lcs.mit.edu)