This is a motion for order to show cause claiming that:
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
e360 INSIGHT, LLC, an Illinois Limited
Liability Company, and DAVID LINHARDT,
an individual,
Plaintiffs,
v.
THE SPAMHAUS PROJECT, a company
limited by guarantee and organized under the
laws of England, a/k/a THE SPAMHAUS
PROJECT, LTD.,
Defendant.
DEFENDANT’S RESPONSE TO E360’S MOTION
FOR RULE TO SHOW CAUSE, AND DEFENDANT’S REQUEST
FOR LEAVE TO CONDUCT LIMITED DISCOVERY, REQUEST FOR
CLARIFICATION OF THE PERMANENT INJUNCTION, AND REQUEST
TO STAY ENFORCEMENT OF THE INJUNCTION PENDING CLARIFICATION
NOW COMES the Defendant The Spamhaus Project,1 by and through its attorneys Jenner & Block LLP, and submits the following in response to Plaintiffs’ Motion for Rule to Show Cause alleging a violation of the Permanent Injunction, and requests (1) for leave to conduct limited discovery in order to comply with the Permanent Injunction entered on September 13, 2006; (2) clarification of that Injunction; and (3) stay of enforcement of the Injunction pending clarification:
1. On September 13, 2006, this Court entered an order for default judgment in favor of Plaintiff and against Defendant, including a Permanent Injunction. The order for default
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1 Defendant expressly objects to this Court’s jurisdiction over The Spamhaus Project because Defendant is based solely in the United Kingdom and does not conduct or transact business in Illinois. Moreover, Defendant reserves its arguments based on Plaintiff’s failure to properly effect service of process. These objections are made notwithstanding Defendant’s filing of this Motion, and had previously been raised in the Notice of Removal and Answer to the Complaint that was withdrawn with leave of this Court.
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judgment and Permanent Injunction is currently on appeal and fully briefed before the United States Court of Appeals for the Seventh Circuit.
2. The Permanent Injunction states that:
3. Spamhaus obtained evidence that spam was being sent from anonymous domains within the IP address ranges 63.161.113.0 to 63.161.113.255 (consisting of 255 IP addresses). On March 1, 2007, Spamhaus created SBL record SBL51828 listing 63.161.113.0/24. After investigation, Spamhaus found that the 63.161.113.0/24 netblock was registered to “Rocky Mountain Internet Service, LLC” of Colorado. The registration appears as follows:
OrgName: Rocky Mountain Internet Services, LLC
OrgID: RMIS-3
Address: 102 S. Tejon Street
Address: 11th Floor
City: Colorado
StateProv: CO
PostalCode: 80903
Country: US
As Exhibit A, a sample of six records obtained from the IP range, demonstrates, there was no other identifier present in the IP address registry to suggest the 63.161.113.0/24 IP range was owned by anyone other than Rocky Mountain Internet Services, LLC. The 255 IP addresses and domain name, rockymountaininternetservices.com, was registered through a Florida company, Moniker Privacy Services of Pompano Beach, Florida, that provides anonymous domain registration services.
4. Spamhaus further obtained evidence that spam was being sent from anonymous
domains within the IP address ranges 71.5.99.0 to 71.5.99.128 (consisting of 128 IP addresses). On March 13, 2007, Spamhaus created SBL record SBL52363 listing 71.5.99.0/25. After investigation, Spamhaus found that the 71.5.99.0/25 netblock was registered to “XO Communications” of Reston, Virginia. The registration appears as follows:
OrgName: XO Communications
OrgID: XOXO
Address: Corporate Headquarters
Address: 11111 Sunset Hills Road
City: Reston
StateProv: VA
PostalCode: 20190-5339
Country: US
As Exhibit B, a sample of eight records obtained from that IP range, demonstrates, there was no other identifier present in the IP address registry to suggest the IP range was owned by anyone other than XO Communications. The 80 anonymous domain names within the IP range were all registered through Moniker Privacy Services of Pompano Beach, Florida, a company that provides anonymous domain registration services.
5. e360 contacted Spamhaus claiming that it owned and controlled the IP addresses listed under SBL 51828 and SBL 52363, and requested that Spamhaus remove the addresses from the SBL list in order to comply with the terms of the Permanent Injunction.
6. In response to e360’s request, Spamhaus repeatedly requested further evidence regarding e360’s ownership and control of the IP addresses at issue. (See Exhibit C - Letters from February 14, 2007; March 7, 2007; and March 15, 2007). e360 never responded to these requests. Furthermore, in an effort to comply with the Permanent Injunction and to avoid unnecessary future disputes over Spamhaus’ compliance, Spamhaus additionally requested a list of all of e360’s anonymous domains, the location of such domains, and e360’s relationship with those domains (i.e. whether the domain was directly owned by e360 or was an affiliate, subsidiary, or related company owned or controlled by e360 or David Linhardt). This information is critical because Spamhaus has reason to believe that the number of anonymous domains operated by e360 is significant in scope, and without this information Spamhaus is in an untenable position and exposed to repeated threats and Motions for Rule to Show Cause from Plaintiffs regarding compliance with the Permanent Injunction.
7. e360 steadfastly refused to provide any of the evidence reasonably requested by Spamhaus. Instead, on March 16, 2007, e360 provided an affidavit from David Linhardt opining in conclusory fashion that IP addresses 63.161.113.0/24 (SBL 51828) and 71.5.99.0/25 (SBL 52363) are “controlled by e360Insight, LLC and David Linhardt as that term is used in the Default Judgment Order entered in the case of e360 Insight, LLC et al vs. The Spamhaus Project on September 13, 2006.” (Ex. D at ¶¶ 5, 7.) The affidavit did not include any supporting documentation for David Linhardt’s bald assertion that he “controls” the IP addresses at issue, nor did the affidavit include any documentation or evidence of ownership or registration of the IP addresses in question by e360. Furthermore, the affidavit provided no statement or evidence regarding how exactly the IP addresses are “controlled” by David Linhardt.
8. After receiving Linhardt’s affidavit, Spamhaus agreed to remove references to bargaindepot.net from the ROKSO on March 16, 2007. In meet and confer discussions with e360 regarding the Injunction, e360’s counsel stated that it believes the term “affiliates” includes e360’s independent business partners. Thus, Spamhaus has reason to believe that these “anonymous” companies are not actually “controlled” by e360 or David Linhardt, which places them outside of the terms and scope of the Injunction. Therefore, Spamhaus refused to remove SBL listings 51828 and 52363 without actual documentary evidence demonstrating e360’s ownership or “control” of the IP address ranges at issue, and renewed its request for a list of all of e360’s anonymous domains, the location of such domains, and e360’s relationship with those domains in order to ensure that Spamhaus could fully comply with the Permanent Injunction. e360 again refused to provide this information.
9. On April 4, 2007, e360 filed its Motion for Rule to Show Cause, alleging that the IP addresses included in SBL listings 51828 and 52363 were listed in violation of the Permanent Injunction because these IP addresses were allegedly controlled by e360, and Spamhaus never provided “clear and convincing evidence” that Plaintiffs violated U.S. law prior to listing the IPs, as required under the Permanent Injunction. (Motion for Rule to Show Cause ¶ 4). e360 also requested that this Court:
(Id. at pp. 4-5). e360’s Motion for Rule to Show Cause is without merit, for a plethora of reasons.
10. First, the Permanent Injunction applies solely to “Plaintiffs or their affiliates, subsidiaries, or related companies owned or controlled by Plaintiffs.” The bulk emails that caused Spamhaus to list the IP ranges within SBL listings 51828 and 52363 were sent from anonymous domain names within those IP ranges, and the IP ranges are registered to Rocky Mountain Internet Services, LLC and XO Communications, respectively. In fact, the use of Moniker Privacy Services to register the domain names within the IP ranges covered by the SBL listings at issue demonstrates that the domain names are intentionally registered anonymously. Because the IP ranges in question are registered to companies that are not a party to this lawsuit or the Injunction, and the domain names within those IP ranges are registered anonymously, SBL listings 51828 and 52363 do not violate the Permanent Injunction because they do not concern “Plaintiffs or their affiliates, subsidiaries, or related companies owned or controlled by Plaintiffs.” The SBL listings were generated without any knowledge by Spamhaus that these IP ranges could be “Plaintiffs or their affiliates, subsidiaries, or related companies owned or controlled by Plaintiffs.” e360 has never provided any documentation to contradict these facts that Spamhaus discovered in publicly available records.
11. In support of its Motion for Rule to Show Cause, e360 attached Exhibit B, representing it to be the “allegedly spam e-mail.” Motion for Rule to Show Cause at ¶ 5. Not only was this “allegedly spam e-mail” attached without any authentication, it also was not the spam email that led to the creation of SBL 52363. According to Spamhaus’ website (http://www.spamhaus.org/sbl/index.lasso), the offending spam email was actually sent from the domain titmon.com. (Ex. E.) Furthermore, the very domain names mentioned by e360 in the exhibits in support of its Motion for Rule to Show Cause (namely “haogdam.com,” “gotdop.com,” and “ifbeam.com”) (Motion for Rule to Show Case at Exhibits B and E) are registered anonymously with Moniker Privacy Services under the IP address ranges covered by SBL listings 51828 and 52363, which are registered to Rocky Mountain Internet Services, LLC and XO Communications. (Exhibits A and B, respectively). As such, nothing in the registry of either the domain names at question, or the IP ranges from which these domain names operate indicates that these domain names or IP ranges are “Plaintiffs or their affiliates, subsidiaries, or related companies owned or controlled by Plaintiffs.”
12. Second, while e360 relies on the affidavit of David Linhardt as proof that the IP ranges identified by SBL 51828 and 52363 are “controlled by e360Insight, LLC and David Linhardt as that term is used in the Default Judgment Order entered in the case of e360 Insight, LLC et al vs. The Spamhaus Project on September 13, 2006,” this affidavit is legally insufficient. An affidavit must be based on personal knowledge, set forth facts that would be admissible in evidence, and show affirmatively that the affiant is a competent witness on those matters. Fed. R. Civ. P. 56(e); Johnson v. Nordstrom, Inc., 260 F.3d 727, 736 (7th Cir. 2001). Statements in affidavits about opinion, belief, or conclusions of law are to be given no effect. See Eden v. Klaas, 165 Neb. 323, 328 (Neb. 1957). In this case, Linhardt’s affidavit contains only his legal conclusion that he “controls” the IP addresses at issue “as that term is used in the Default Judgment.” However: (1) the term “controlled” was never defined in the Permanent Injunction; (2) e360 and Linhardt never explain how they believe “control” was “used in the Default Judgment;” and (3) despite repeated requests by Spamhaus, e360 and Linhardt have provided no actual admissible evidence or documentation (such as ownership records or registration records) to support the affidavit’s conclusory assertion that Linhardt “controls” the IP addresses listed by SBL 51828 and 52363.
13. Third, e360 fails to submit an affidavit or other admissible evidence to support the “facts” alleged in their motion. For example, in Paragraph 8 of e360’s Motion for a Rule to Show Cause, e360 contends that “Spamhaus’ actions are continuing to cause irreparable harm to e360 and are inhibiting e360’s ability to conduct its lawful business,” that “Spamhaus [sic] actions have directly resulted in lost revenue for e360,” and that “e360 is forced to spend additional legal fees to respond to Spamhaus’ improper acts.” e360, however, provides no admissible evidence to support any of these contentions — no evidence of “irreparable harm,” no evidence that e360’s business is indeed lawful, no evidence of “lost revenue,” no evidence of expenditures for legal fees, and most importantly, no evidence that Spamhaus’ actions were the cause of any alleged and unsupported harms that may have befallen e360. Similarly, in Paragraph 9 of e360’s Motion for a Rule to Show Cause, e360 alleges that “Spamhaus [sic] SBL listing was the sole reason provided by Time Warner for terminating e360’s services, provided by J3 Networks.” This allegation, too, is offered without the support of any admissible evidence – nowhere in e360’s exhibits in support of its motion is there any evidence from Time Warner stating or suggesting that Time Warner terminated e360’s service because of Spamhaus. e360’s Motion for a Rule to Show Cause is devoid of any admissible evidentiary support and should be denied.
14. Fourth, without any admissible proof regarding e360’s ownership or control of the IP ranges listed under SBL 51828 and 52363, Spamhaus should have no obligation to remove the Case listings from the SBL. By allowing e360 to claim “control” or ownership of IP ranges registered to other entities and domain names that were registered anonymously, it is possible (and, Spamhaus would argue, likely) that the Permanent Injunction may be abused to provide a windfall to parties that are not “Plaintiffs or their affiliates, subsidiaries, or related companies owned or controlled by Plaintiffs,” and thus not within the proper scope of the Injunction.
15. Fifth, Paragraph 10 of e360’s Motion for Rule to Show Cause is disingenuous because it attempts to show that Spamhaus refused to comply with the Permanent Injunction even though e360 provided Spamhaus with Linhardt’s affidavit evidence. However, Spamhaus has repeatedly (since February 2007) asked e360 for evidentiary proof regarding its control or ownership of the IP ranges at issue in an attempt to comply with the Permanent Injunction. Despite these repeated requests, e360 refuses to provide this proof, without ever explaining why it is unwilling to comply with this simple, reasonable request. Given e360’s reticence to provide any ownership or registration documentation concerning these IP ranges, Plaintiffs’ ownership or “control” of the IP address ranges at issue has never been demonstrated, and therefore these anonymous domains within the IP address ranges do not fall within the parameters of the Injunction.
16. Sixth, Spamhaus disagrees with e360’s characterization of the procedures of the Permanent Injunction. e360 argues that Spamhaus is prohibited from listing any IP addresses that are owned or controlled by Plaintiffs or their affiliates, subsidiaries, or related companies, and that upon e360 asserting that it has any ownership or control over any IP address, regardless of the sufficiency of proof, Spamhaus must immediately remove the IP address from the SBL list. While Spamhaus agrees that the Injunction prohibits it from listing Plaintiffs or their affiliates, subsidiaries, or related companies owned or controlled by Plaintiffs, the Injunction Case applies only to “companies owned or controlled by Plaintiffs.” The IP addresses at issues are anonymously registered and when they were listed, Spamhaus had no knowledge that e360 or David Linhardt claimed some sort of ownership or control. e360 has failed to provide Spamhaus with evidence sufficient to actually show that it owns or controls these domain ranges. Thus, this dispute falls outside the parameters of the Permanent Injunction.
17. Finally, the third and fourth requested relief by e360 is beyond the reach of the Permanent Injunction and this Court’s power. First, e360 requests that this Court “[b]ar any internet service providers from using Defendant’s Block list until Defendant complies with this the September 13, 2006 Order.” The millions of internet service providers in the universe are not parties to this case and this Court lacks the authority to order such relief. Second, e360 requests that this Court “[r]equire the Internet Corporation for Assigned Names and Numbers (“ICANN”) to suspend the domain spamhaus.org until Defendant complies with the September 13, 2006 Order.” As this Court noted in its October 19, 2006 Order on e360’s Motion for Rule to Show Cause (in which e360 similarly requested that this Court order ICANN to suspend the spamhaus.org domain), ICANN is not a party to this case. Furthermore, as this Court also noted, e360’s requested relief (both then, and now) is “too broad to be warranted in this case” because “there has been no indication that ICANN…[is] not an independent entit[y], thus preventing a conclusion that [ICANN] is acting in concert with Spamhaus to such a level that they could be brought within the ambit of Fed. R. Civ. P. 65(d)” and “suspension would cut off all lawful online activities of Spamhaus via its existing domain name, not just those that are in contravention of this Court’s order.”
18. In addition to denying e360’s Motion for Rule to Show Cause, Spamhaus requests an opportunity to conduct limited discovery relating to companies owned or controlled by e360 or David Linhardt, so that Spamhaus can attempt to reasonably comply with the Permanent Injunction. To avoid disputes over compliance with the Injunction and to conserve judicial resources in the future, Spamhaus requests that this Court order e360 to provide Spamhaus with a list of all of the anonymous domain names and IP ranges e360 uses to send bulk email, as well as documentation sufficient to demonstrate that e360 actually owns or “controls” such domains or IP ranges. As noted above, Spamhaus has repeatedly requested this information from e360, but e360 refuses to provide it. Spamhaus believes this request is both reasonable and not onerous in any manner upon e360.
19. Furthermore, Spamhaus also requests an opportunity to serve interrogatories and document requests regarding ownership and registration records for IP addresses and domain names owned or controlled by e360, and also an opportunity to take David Linhardt’s deposition regarding his or e360’s ownership or control of any anonymous IP addresses and domain names. The limited discovery requested by Spamhaus is necessary to avoid any future disputes regarding the terms of the Permanent Injunction, and will ensure Spamhaus’ ability to comply in good faith with the Injunction.
20. In addition to denying e360’s Motion for Rule to Show Cause and granting Spamhaus’ request for limited discovery, Spamhaus also requests clarification of the Injunction. The Injunction is not specific in terms of the parties covered. As shown above, e360 and David Linhardt have a multitude of businesses that they regularly create and register anonymously for the purpose of sending “bulk” email. It is unclear whether the Injunction covers only the companies owned or controlled by e360 at the time of the entry of the Injunction or forever into the future. Clarification on the scope of the Injunction’s coverage will assist Spamhaus in complying with the Injunction.
21. Clarification is also necessary regarding the procedure by which disputes regarding listings on the SBL and ROKSO lists are adjudicated. As Spamhaus understands the terms of the Injunction, Spamhaus must present “clear and convincing” evidence of a violation of U.S. law before listing on its SBL or ROKSO lists companies owned or controlled by Plaintiffs. However, this “clear and convincing” evidence may only be “shown” after providing the evidence to e360 to review and have an opportunity to prove no violation of US law to the satisfaction of a reasonable person. Finally, if “clear and convincing evidence” is shown, then Spamhaus may list the offending IP address.
22. The Injunction as presently constituted leaves a number of questions open for interpretation, placing this Court in the role of perpetual referee between the parties. As shown above, the first disputed area is the amount of and type of proof required for e360 to demonstrate ownership or control of an anonymously registered company. Second, the term “shown” is not defined in the Injunction, it is unclear how the “clear and convincing” evidence Spamhaus may acquire of a violation of U.S. law by e360 is to be “shown,” and it is unclear what constitutes a “violation of U.S. law” that would permit Spamhaus to list e360 on its SBL and ROKSO lists. Third, the Injunction fails to specify when or how this evidence should be presented, or indeed how Spamhaus is to initiate a proceeding. Fourth, the Injunction is unclear how much evidence is sufficient to reach the standard of “clear and convincing” in order to allow Spamhaus to list a company owned or controlled by e360, and who makes the determination that evidence indeed meets the “clear and convincing” threshold. Finally, when Spamhaus presents its evidence, e360 is permitted to refute the “clear and convincing” evidence to “the satisfaction of a reasonable person.” Beyond being unfair in the differing standard of proof required for each party, it is unclear who represents the “reasonable person” and who determines whether sufficient evidence has been presented. For all of these reasons, the process provided in the Permanent Injunction will require this Court to become involved on an almost daily basis to interpret and manage the Injunction’s enforcement.
23. Finally, in addition to denying e360’s Motion for Rule to Show Cause, and granting Spamhaus’ requests for limited discovery and clarification of the Permanent Injunction, Spamhaus respectfully further requests that this Court stay enforcement of the Permanent Injunction until all of the above issues are resolved. Spamhaus cannot begin to comply with the Injunction unless and until it is clear what IP ranges and domains are owned or controlled by e360, and until the procedures under the Injunction are clarified and established in regards to how Spamhaus is to present the Court with “clear and convincing” evidence about any potential violations of U.S. law by e360.
WHEREFORE, Defendant The Spamhaus Project respectfully requests that this Court deny Plaintiffs’ Motion for Rule to Show Cause, grant Spamhaus’ request to conduct limited discovery, and grant Spamhaus’ request for clarification of the Permanent Injunction.
Respectfully submitted,
THE SPAMHAUS PROJECT
Dated: April 9, 2006 By: s/Matthew M. Neumeier_________
Matthew M. Neumeier
Craig C. Martin
Carrie A. Fino
JENNER & BLOCK LLP
330 North Wabash Avenue
Chicago, IL 60611
Telephone: (312) 222-9350
Facsimile: (312) 527-0484
Case 1:06-cv-03958 Document 82 Filed 04/09/2007 Page 13 of 14
CERTIFICATE OF SERVICE
I, Carrie A. Fino, an attorney, hereby certify that I served the foregoing Defendant’s
Response to e360’s Motion for Rule to Show Cause, and Defendant’s Request for Leave to
Conduct Limited Discovery, Request for Clarification of the Permanent injunction, and
Request to Stay Enforcement of the Injunction Pending Clarification upon:
Joseph L. Kish
Kristen M. Lehner
Bartly Joseph Loethen
Synergy Law Group, L.L.C.
730 West Randolph Street
6th Floor
Chicago, IL 60661
Phone: (312) 454-0015
Fax: (312) 454-0261
by depositing a copy of same in the United States Mail, postage prepaid, on this 9th day of April
2007.
__s/Carrie A. Fino________________________
Carrie A. Fino
UNITED STATES DISTRICT COURT
FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 3.0
Eastern Division
Case No.: 1:06−cv−03958
Honorable Charles P. Kocoras
e360 Insight, LLC, et al.
Plaintiff,
v.
Spamhaus Project, The
Defendant.
NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Tuesday, April 10, 2007:
MINUTE entry before Judge James B. Zagel :Motion hearing held on 4/10/2007 before Judge Zagel. Plaintiffs' motion [79] for a rule to show cause is entered and continued to 4/12/2007 at 1:30 p.m. before Judge Zagel. Mailed notice(sct, )
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information.
For scheduled events, motion practices, recent opinions and other information, visit our
web site at www.ilnd.uscourts.gov.
This is e360Insight's response to Spamhaus' opposition to e360Insight's Motion for Order to Show Cause.
The claims:
UNITED STATES DISTRICT COURT
FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 3.0
Eastern Division
e360 Insight, LLC, et al.
Plaintiff,
v. Case No.: 1:06−cv−03958
Honorable Charles P. Kocoras
Spamhaus Project, The
Defendant.
NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Thursday, April 12, 2007:
MINUTE entry before Judge James B. Zagel :Show cause hearing stricken. Status
hearing held on 4/12/2007. RULE to show cause [79] is denied as moot. Petition for fees denied as moot.Mailed notice(drw, )
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of
Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was
generated by CM/ECF, the automated docketing system used to maintain the civil and
criminal dockets of this District. If a minute order or other document is enclosed, please
refer to it for additional information.
For scheduled events, motion practices, recent opinions and other information, visit our
web site at www.ilnd.uscourts.gov.