After spending years cracking down on spammers, two prominent organizations that list senders of junk e-mail are fending off an unorthodox legal challenge by e-mail marketers.
In a case that's raising the hackles of antispam activists, a group of anonymous e-mail marketers are charging that two blacklisting sites, Spamhaus and SPEWS.org (Spam Prevention Early Warning System), have published false, misleading and libelous information about their business practices.
The group, which goes by the name eMarketersAmerica.org is asking a court to declare the sites' use of suspected-spammer lists illegal.
"Once they're on that list, there's no due process and there's no recourse," said Mark Felstein, general counsel for the marketing group, whose members, he said, are not revealing their names yet out of fear of retaliation. The suit, filed in the U.S. District Court for the Southern District of Florida, names Spamhaus, SPEWS.org and nine individuals believed to be associated with them as defendants.
So far, Felstein's legal arguments have not exactly left antispam groups quaking in their boots.
"We're of the opinion that blacklists have a First Amendment right to criticize the business practices of e-mail marketers or anyone else they choose, for that matter," said Andrew Barrett, executive director of SpamCon Foundation. SpamCon named the defendants in the eMarketersAmerica case the first potential recipients of donations from a new legal defense fund.
Barrett said the libel charges against SPEWS, in particular, were bogus on the grounds that the site does not consider the content of messages when placing senders on its blacklist, focusing instead on whether the e-mails were solicited.
Internet service providers often use the blacklists to block incoming e-mail from spammers before it arrives in customers' inboxes.
"They don't say: 'John Doe is a spammer,'" Barrett said. "They say: 'We have a reason to believe that spam is originating from this computer."'
Steve Linford, the director of Spamhaus and one of the defendants in the case, also maintains in a posting on his website that the lawsuit claims are without merit. He objects in particular to a charge in the suit that his block list comprises an effort "to maliciously interfere with the businesses of the plaintiff."
"The Spamhaus Block List blocks IP addresses at the receiving machine, not at the sending machine," he wrote. "The receiving machines are the private property of the SBL users who operate them, and an SBL user has the undeniable right to block incoming e-mail for whatever reason he or she likes."
Linford also contends that six of the individuals listed as defendants in the suit, including his brother, have nothing to do with the operation of the Spamhaus, and, to his knowledge, are not part of SPEWS.
Two others named in the suit, Alan Murphy and Susan Wilson, are volunteer investigators for Spamhaus but are not directors or officers, Linford said.
Representatives of SPEWS, which makes a practice of not revealing the names its operators, did not respond to requests for comment.
Its website contains a FAQ with an entry that contends its actions are entirely legal: "SPEWS is just an opinion report, used by some to filter Internet traffic, others to read for amusement, it was not created, intended, or used to libel or defame anyone."
In the posting, SPEWS describes itself as "just a list made by people who deal with the spam/junk e-mail problem on a daily basis." Its members, SPEWS said, are "from all over the world," including North and South America, Europe, Asia and Australia.
According to Felstein, SPEWS' preference for anonymity made it difficult to ensure that the appropriate individuals were served with lawsuit papers. He believes that at this point he has tracked down nearly everyone.
SpamCon's Barrett says that SPEWS' reputation for anonymity could also make it difficult to dole out legal defense aid. In order to get the money, he said, the recipients would have to identify themselves.
