SPEWS in UK Lawyer's Sights

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A new legal tiff is brewing around anti-spam blacklisting Web site Spam Prevention Early Warning System, or SPEWS.org.

Island Networks, the domain name manager of the Channel Islands, a self-governing group of islands in the English Channel, threatened legal action against SPEWS last month for listing its IP addresses. SPEWS publishes a list of IP addresses its maintainers think are sources of spam. Some e-mail administrators use the list to block unwanted e-mail.

SPEWS reportedly initially complied with Island Networks' request. But last week, the IP address in question was listed on SPEWS.

"We are still considering our response," said Island Networks' lawyer, Nick Lockett of London-based DL Legal. "I suspect that this may involve discussions with the U.S. authorities, and when I am in Russia next week on the usual visit, I will discuss the matter with our Russian colleagues and probably refer the matter to the FSB or Russian Federal Security Service (equivalent of [the UK] computer crime group)."

SPEWS is run anonymously to avoid its maintainers getting sued. Many think it is based in Russia, hence Lockett's referral to the FSB. As a result of SPEWS' maintainers' anonymity, people communicate with them by posting messages in anti-spam discussion group NANAE.

In the case of Island Networks, SPEWS reportedly published a block of IP addresses, among which was an Island Networks address. Island Networks claims a strict anti-spam policy.

Listing entire blocks of IP addresses of ISPs that apparently have spammers using their systems is a well-known, and controversial, tactic of anti-spam blacklisting services.

Many anti-spam activists maintain that the blocking of non-spamming IP addresses that results from this tactic is necessary "collateral damage." They defend the practice by saying it prods non-spammers whose mail gets blocked either to take their business elsewhere or pressure their ISP to tighten its anti-spam efforts.

Lockett, however, calls the blacklisting of entire blocks commercial blackmail.

He posted a notice last month on NANAE on behalf of Island Networks claiming in part, "The listing of the block (i.e. all 1536 addresses) rather than the offending IP addresses causes our client direct economic and commercial loss. Your listing means that our client's mail will be wrongfully bounced by ISPs using your service."

The notice gave SPEWS until Jan. 24 to comply or face "proceedings for a worldwide injunction," or for defamation and commercial loss. For a while, it looked as if SPEWS complied. But last week, the Island Networks IP address in question was listed on SPEWS, though Island Networks apparently now has another one.

Meanwhile, Lockett contends that SPEWS' veil of anonymity is not as impenetrable as many anti-spammers believe.

A provision in UK law lets lawsuits be brought against unknown parties who try to hide their identity as SPEWS has done, he said. It also allows for seizure of the only known asset, in this case the domain name.

"That would be granted on an interim basis, which would force the owner out into the open," he said.

Lockett said he is against spam, and not against blacklisting. But he is against blacklisting entire blocks of addresses and blocking non-spamming IP addresses in the process.

"As we are supporters of anti-spam operations, we would not want to close down the SPEWS operation -- nor would our client," he said. "If SPEWS continues to list our client without foundation, they may force our client's hand. If our client sued successfully, he could seize the domain as the only identifiable asset and take over the running of SPEWS under a responsible policy. That is an option we have to seriously consider."

However, he said, "it would stretch our client's anti-spam budget and probably mean that our client ceased sponsoring its anti-spam activities with other parties."

Lockett's challenge is not the first unusual legal tactic taken against SPEWS.

Australian direct marketer T3 Direct in June 2002 tried to get around SPEWS' anonymity by suing anti-spammer Joseph John McNicol, claiming that McNicol got T3's IP addresses listed on SPEWS because of an "unfounded complaint." The suit was dismissed in October when an Australian court decided that since T3 admitted spamming, McNicol's complaint couldn't be unfounded or libelous.

Meanwhile, the Island Networks-SPEWS issue is being debated vigorously on NANAE. "Look, I believe that if Lockett goes through with this, he will just end up embarrasing [sic] himself and will lose badly. But I do see some ways that he can win even though he is wrong," said one post under the name Jeffrey Goldberg.

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