Spam is silenced, but where are the feds?

pick up the actual culprits," Cox said.

While there's no doubt that the activities associated with McColo are illegal under U.S. law, the idea that you could prosecute an ISP for abetting illegal activity is largely unproven, so any prosecutor that took on this case would be taking a big risk that the case would be tossed out of court.

There is at least one precedent however. On Feb. 14, 2004, the FBI shut down operations at a small Ohio ISP called Creative Internet Techniques in an event the FBI dubbed the Cyber Saint Valentine's Day Massacre. At the time, it was the largest FBI takedown in the organization's history. Nearly 300 servers were seized after Creative Internet, also known as FooNet, was linked to distributed denial of service attacks.

The reason why some security experts have called for a similar takedown at McColo has, in part, to do with the sneaky way that McColo's customers were disrupted. Researchers say that McColo computers weren't actually sending out spam, just running the command and control servers that marshalled an estimated half-million infected botnet computers. These infected machines would take their instructions from servers on McColo's network, but should those computers ever be knocked offline, they were given several other backup Internet domains to check for commands.

To keep things secret, the criminals hadn't registered these domains, but they had coded several hundred of them into their botnet software. But the researchers learned these domain names by looking at the botnet code to find out what the hacked computers would do when McColo went down. Shortly before the McColo network was knocked offline by Global Crossing and Hurricane Electric, researchers registered the hundreds of backup domains themselves.

When the botnets couldn't go to McColo's IP (Internet Protocol) space for instructions, they started looking for their backup domains, but these were controlled by security researchers. Now, disconnected from their control servers, and unable to connect to a backup, two of the Internet's worst botnets, Srizbi and Rustock, have been decapitated.

"There have got to be hundreds of thousands of bots out there that aren't phoning home right now" said Joe Stewart, a botnet expert with SecureWorks who has tracked the McColo situation.

These bots might well be disabled for good, provided McColo's computers do not get brought back online. But that's exactly what happened a week ago, when a reseller of Swedish ISP TeliaSonera reconnected McColo temporarily.

The mistake was quickly noted, and TeliaSonera quickly disconnected McColo. But security vendor FireEye reckons that the bad guys were able to regain control of thousands of botnet computers during this brief window of opportunity. When McColo went back on the Internet, its IP address space worked again and cybercriminals were able to send instructions to their botnet computers. They would not have been able to do this had the FBI been able to shut down McColo's San Jose, California, data center, as it did with Creative Internet.

Creative Internet was exceptionally brazen about its activities and that type of raid is unlikely to happen again, said Spamhaus' Cox. "You can't prove those sort of cases to a sufficient level to get it to a grand jury," he said. ISPs are almost always given a pass when this type of activity is discovered on their network because they can plausibly deny that they knew anything about it.

The FTC would like to change that, however. In April, the FTC asked Congress for changes to the FTC Act that would allow it to pursue those who aided and abetted in fraud, which would allow it to go targets such as bad actor ISPs who have helped fraudulent businesses.

Congress has already granted the FTC a similar authority to go after brokers who knowingly provide lists to telemarkerters, said Steven Wernikoff, a staff attorney with the