From: Mark Crispin 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:
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
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 --
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