Kyle

There was a discussion on the DJBDNS mailing list recently (very short, because of the characters involved) about email and DNS-based blacklists. The discussion is here.

The basics of it go like this: DNS-based blocklists (DNSBL’s or DNS-RBLs) are publicly available lists of “known-bad” IP addresses. How this generally works is somebody (SpamCop or MAPS, for example) will use some method (frequently known only to them) to determine whether or not a given IP address is a spammer or not, and will then publish that information. Other people (for example, Notre Dame) use that information to make decisions about whether or not to accept or reject mail from those IP addresses. There are a zillion of these lists, and many people use them as a short-cut (looking up the IP address in one of these lists is much easier than doing fancy content-analysis like we do on memoryhole.net), particularly when they’ve got a high volume of email.

The claim, that I don’t believe, is that these things are essentially illegal. The reason people say these black lists are illegal is because they do not discriminate between non-spam and spam, but merely everything from a given host. The justification is usually Exactis v. MAPS, where a spammer (Exactis) sued the MAPS blacklist for listing them, claiming that, among other things, MAPS was abusing monopoly power and violating America’s anti-monopoly laws. What happened was that Exactis got a preliminary injunction (i.e. MAPS had to take them out of the blacklist), and then MAPS settled out of court.

To get more information, I asked my brother, who is a lawyer (passed the bar exam, currently gets paid for his legal services, etc.) to take a look and tell me what he thought.

The first thing he points out is how to think about this preliminary injunction business. He says:

Just FYI, a temporary restraining order and a preliminary injunction are essentially the same, but with important differences. A TRO is completely ex parte, and the other side gets no say in the matter, and is only granted when the harm is so immediate that the time it takes to get the other side to appear in court will damage the person requesting the TRO, and you also have to list and certify the efforts you’ve taken to inform the other side and to try to secure their appearance in court. A TRO expires in ten days, if not sooner. A preliminary injunction lasts through the final decision of the court as to the merits of the case.

So why was the preliminary injunction granted in this case? Well, the standard that the Tenth Circuit Court uses to decide whether to grant a preliminary injunction is defined as follows:

In the Tenth Circuit, preliminary relief is warranted upon a showing (i) that Plaintiff faces irreparable harm, (ii) that the prospective harm to Plaintiff outweighs any damage Defendants might sustain without an injunction, (iii) that injunctive relief is not adverse to the public interest, and (iv) that the case presents serious, substantial, and difficult questions as to the merits, as to make the issues ripe for litigation and deserving of more deliberate investigation. Walmer v. U.S. Dept. of Defense, 52 F.3d 851, 854 (10th Cir. 1995).

In other words, a preliminary injunction:

is not a decision on the merits or even that the merits are to be considered. Rather, the standard is a balancing of the risks. In this case, the balancing was easy, given the low individual harm cause by spam, and the high alleged damage to Exactis. Thus, comparing negligible (if any) harm to MAPS (since their business is built more on reputation than individual screenings) and high potential harm to Exactis, the granting of the preliminary injunction was fairly routine.

Indeed, for an example of a nearly identical situation where the preliminary injuction was DENIED, look no further than Media3 v. MAPS.

That doesn’t mean that the denial (Media3) or the imposition (Exactis) is in any way a judgment on the merits of the case. You don’t even have to show that you have a “valid legal argument”, as Dean Anderson claims. Instead, you have to have a “non-frivolous” legal argument. However, according to my brother:

The standard for frivolity is so low that only a limited group of arguments qualify (the only one I know of being an argument against paying the income tax). Attorneys are supposed to advance any claim where they can make “a good faith argument for an extension, modification, or reversal of existing law”. (That comes from the American Bar Association’s Model Rules of Professional Conduct, Rule 3.1)

More importantly, for that very reason, the very idea of citing a temporary restraining order or preliminary injunction in other legal action is ludicrous. In most jurisdictions, the only things you can cite are “published” final decisions—that is, in the Exactis case, since it was settled out of court, there was no final decision (also, municipal court decisions are not citable, because they tend to be extremely specific to the facts of the case), thus it cannot be cited. You can cite an injunction later on in the same court proceeding, but not in a different court proceeding. So, not only can you NOT cite the Exactis injunction, but it’s, quite specifically, not even a judgment on the merits of the case.

My brother puts it slightly better:

There are two different things involved in a case: facts and law. An injunction is based on the ALLEGED facts (so they may not even be the “real” facts), and a weighing of the alleged harms. The injunction reserves the decision as to the LAW in the case for later, and is intended to preserve the status quo through trial until the law can be decided. So it’s pretty pointless to say to a court that a fact-based injunction issued in a different case has any bearing on the issues of law in a different case. There’s just no relevance there.

But, well, that’s a very thorough explanation of why the Exactis v. MAPS case is, essentially, irrelevant, we’re still left with the question of whether the MAPS-style blacklists are legal or not. Well, there’s still the question of why MAPS settled the case, but that’s kinda beside the point. It could be that they knew it wouldn’t be worth the lawyer fees, or just didn’t want to fight it out. It could be that they flipped a coin. Who knows? Only MAPS, and maybe their lawyer.

Indeed, antitrust cases are almost never decided against the company in question.

So what about the legality of spam blacklists? Well… there’s not a whole lot of definitive law on the matter. But, for example, check out MAPS v. BlackIce. Now, note that this decision is totally un-cite-able. It’s unpublished, and it’s the California court interpreting a Federal statute (considered a “non-controlling” decision), BUT, unlike the Exactis case, it is actually a decision. And what does it say? From page 6, section B:

Mail Abuse argues the Communications Decency Act provides a complete defense to this action… . Mail Abuse is asserting §230( c )(2) as a defense. Under §230( c ):

“(1) No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. (2) No provider or user of an interactive computer service shall be held liable on account of: (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

Sounds pretty good for MAPS, eh? Next:

The next inquiry, then, is whether spam is “harassing” or “otherwise objectionable” material under §230( c )(2)(A). This is an undecided question of law. One federal court, in dicta, noted blockage of unsolicited bulk e-mail was “encouraged” by §230( c )(2). (America Online v. Greatdeals.net (S.D.W.Va 1999) 49 F.Supp.2d 851, 855, 864 (dismissing tortious interference with contractual relations and prospective economic advantage claims) (implying unsolicited bulk e-mail is “harassing” or “otherwise objectionable”).)

…

Whether spam is “harassing” or “otherwise objectionable” is likely an issue that will be resolved in the federal courts. But given the state of law before the court, the Greatdeals.net court’s conclusion that §230 encourages the blocking of unsolicited bulk e-mail seems correct.

Okay, but that’s been established already, right? I mean, we pretty much accept that blocking spam is legal; what about the collateral damage?

Black Ice contends its e-mails were solicited, and therefore not spam. It argues this factual dispute (i.e., whether its e-mails were solicited or unsolicited) cannot be resolved at the demurrer stage. Black Ice fails to read the entire section. Section 230( c )(2)(A) provides immunity for any good faith effort to block content. Any good faith but unintentional blockage of non-spam is therefore also afforded immunity.

(emphasis mine) Aha! This, I think, is a pretty convincing argument that DNS-RBLs are legal. They are (or can be) part of a good faith effort to block spam. The case goes on to go into the details of this particular block, and eventually rules that MAPS was not acting in good faith because of some details of what went on, but the general idea is still valid, and paves the way for black lists (provided that they act in “good faith”).

This past weekend I went home to my parent’s house in Ironwood, Michigan, to celebrate Thanksgiving. By all accounts, it was a lovely weekend. I had a great time, lots of fantastic food, and got to spend time with almost all of the most important people in my life that I rarely get to see.

The return trip, however, was very irritating. My original return-trip itinerary was that I would fly from Minneapolis/St. Paul to Phoenix, and catch an express flight from Phoenix to Albuquerque. Seems simple, right?

The plane to Albuquerque was late.

And by late, I mean irritatingly late. Frustratingly late. Thankfully late. Thankfully? Yes, because my flight from Minneapolis got into the terminal at 9:25 (early!), at some gate in the low A’s (A5?), and boarding of my next flight was due to begin at 9:31. Not, of course, that I had any delusions of getting to eat dinner, but sometimes stray wishes enter the brain just to make things more exciting. After hustling down from one gate to the next, the plane was not there. Not there not because it had left, but because it had never arrived; it was expected to arrive in time to start boarding by 11:45, but the lady behind the desk seemed optimistic we might get on board as early as 11:30 (note, a full two hours late). What luck, right? Dinner! Of course, this dream was short-lived. The nearest restaurants to the gate were already closed, and the next-nearest was only serving booze until 10 (the kitchen had long-since closed). I sat down and ordered a Sam Adams just in time for last call. They kicked everyone out before 10:15.

This was, on the whole, fully unsatisfying. In part because I was really getting rather hungry, and in part because I just wanted a nap (I got up at around 5:30 that morning, after all), or at least to be able to sit down, savor a beer, and stare into the distance for a while. Such was not to be. But, now that I had almost a full hour and a half in front of me, I set about investigating the possibility that somewhere in that God-forsaken airport, some bright young entrepreneur realized that the airlines sometimes bring in new customers even at odd hours of the night. After discussing this with the airport security personnel, who are all-knowing in the ways of airport comestibles, I exited security and arrived at the Paradise Bakery & Grill. This was an oasis in a sea of closed shops and metal grating. They had but one employee and limited cold-cuts-only sandwiches (because it was after hours), and a line about a half-hour deep. I stood, patiently, to get what may have been the most unexpectedly tasty roast beef sandwich of my life. I sat, enjoyed, sipped my cup of ice-water, and nibbled on the slightly under-cooked chocolate chip cookie that came with the sandwich.

By the time I finished, and this is due in part to the fact that I chit-chatted with some of the other unfortunate souls who had also discovered the Paradise Bakery from the security folks, it was past 11:00. This is an important thing to note because, of course, all but one of the security checkpoints close down at that point. One security crew, in the C terminal, are still at their posts. As best I can tell, their job is to frisk Paradise Bakery customers who, because of the late hour, don’t care anymore. I made it back through security and made the long trek back to the far end of the A terminal in good time, and arrived at gate A25 to discover that the plane was there, and that boarding (or, more specifically, pre-boarding) had just begun. After waiting for the various frequent-flier clubs and zones 1 and 2 to board, I entered the airplane, took my seat, and got settled.

This is when things began to get a little more unusual.

Everyone slowly stowed their baggage and took their seats as directed. The people in the emergency exit rows consented to sitting and not doing anything for the extra legroom, and the stewardesses counted the number of passengers, twice. Then, at the point where everyone fully expected the airplane to push back from the gate and get underway, there was an uncomfortable pause. It wasn’t very long, just long enough to be uncomfortable. That was when someone up front informed us all that there was a test that needed to be run on the plane, but that the test needed to be run without passengers. Never fear, of course, we were encouraged to leave our belongings in the plane because we’d be back shortly, but we had to leave. Some of us, myself included, believed the nice man, and so left things. I left my jacket, others left everything. Some were smart, or merely had no luggage, and took everything they had off the plane.

Once off the plane, with a few stragglers still exiting, we were informed by the gate staff that, in fact, we were changing planes. Not only would we need to go back and get our belongings, but we would need to go to gate B6. Note that this is a different terminal. So, back on the plane we went, pushing past other passengers exiting the plane, to fetch our things. On the way down, we ran into the pilot, who demanded to know why we were getting back on the plane. When we told him that we had to because we were changing planes, he got a pained and worried look on his face, and jogged up the jetway to do what can only be guessed would be “knocking some heads.” Belongings gathered, everyone exited the plane and started the long walk to gate B6. Some, who didn’t have luggage or who had wisely chosen not to trust the airline, had already made the trek. By the time I’d gotten down to around the closed Starbucks just past gate A15, they announced over the speakers that, in fact, we were not changing planes, and to come back to gate A25. Back we went.

The fellow manning the gate announced the obvious, that there was apparently some confusion, and that we should all sit tight at gate A25 while the bigwigs figured out what was going on. Those who had made it all the way to gate B6 took several minutes to return, and so only heard the explanation from sarcastic co- would-be passengers. The plane departed for testing, and everyone made themselves comfortable. After a half-hour, the gate staff broke out the normally-$5 “snack packs” and small bottles of water to help with passenger morale. These were greedily devoured by the crowd, no doubt due to some combination of wishing to recoup their losses, thinking they were taking vengeance, boredom, and actual hunger, given that stores had been closed for almost three hours now.

Finally, they announced that the plane had, in fact, failed the test, which as it turns out was less routine and more because the guy who was supposed to hook up his tractor to push the plane away from the gate had noticed some problem with the landing gear. We would indeed be changing planes, and they needed us all to vacate the premises and go to gate B6 now.

No one walked quickly, and everyone appeared to be rather tired. One man near me made several comments revealing that his brother lived in town, and had he gone straight home when the plane was originally delayed, he’d have had dinner and been in bed already. One group commented that once in Albuquerque they were looking forward to a 3-hour drive to their real destination. When I got to gate B6, I could see out the window that there was a plane sitting there, but several key features were missing. First, the people to let us on the plane, and second, the pilots, who one assumes were busy disposing of the previous plane to wherever they dispose of planes. At this new gate, we waited, for somewhere around another half an hour. CNN switched from a long expose on autistic children to a repeat of some live interview show that I forget the name of that promised an in-depth look at Michael Richard’s comments at the comedy club. Finally, the gate workers arrived and let us onto the new plane.

We entered, got stowed luggage, and got settled once more. The stewardesses—one looking just as tired as the rest of us, the other so perky she must have been taking amphetamines of some sort—handed out pillows and blankets. Again, at about the time that we should have pushed away from the gate, there was an awkward pause. No one spoke, hoping against hope.

It really is an unusual thing, to be amongst so many people, in perfect silence.

The silence was broken by the pilot, who explained, with a detectable amount of irritation mixed with some sort of “please forgive us” overtones that apparently someone had forgotten to put fuel in the plane, and if we would all be patient, the fuel truck would soon arrive and disgorge 8,300 pounds of fuel into the belly of the beast. We sat, and waited. It was at this point that I broke out my free “snack pack”. I had no more illusions that this would be quick. The crinkling of my wrappers sounded strange in the surreal-ly quiet cabin. I quickly consumed the cream crackers with processed cheese, a disturbingly yellow Quaker apple-cinnamon breakfast bar, a small chocolate-chip biscotti, and best of all, some shortbread cookies. The dried fruit pack went into my laptop bag for later (if ever). Finally, the captain announced that the fuel had been delivered, and a few moments later, the plane pushed back from the gate. The passengers, myself included, were too tired to cheer, but they began to have quiet conversations once again. I leaned into the pillow they had brought, and fell asleep before takeoff.

The plane finally landed at about 3am, Albuquerque time. I made it to my car, and back home, without incident, finally getting to sleep around 3:30 in the morning.