Word to the Wise

The FTC announced today they will be publishing clarifications to CAN SPAM in the near future. According to the FTC

The new rule provisions address four topics: (1) an e-mail recipient cannot be required to pay a fee, provide information other than his or her e-mail address and opt-out preferences, or take any steps other than sending a reply e-mail message or visiting a single Internet Web page to opt out of receiving future e-mail from a sender; (2) the definition of “sender” was modified to make it easier to determine which of multiple parties advertising in a single e-mail message is responsible for complying with the Act’s opt-out requirements; (3) a “sender” of commercial e-mail can include an accurately-registered post office box or private mailbox established under United States Postal Service regulations to satisfy the Act’s requirement that a commercial e-mail display a “valid physical postal address”; and (4) a definition of the term “person” was added to clarify that CAN-SPAM’s obligations are not limited to natural persons.

Once the rules are published, I will be sure to link to them and comment on them here. From the FTC press release, it seems that the rules are reasonably sane and any current mailer following best practices will already be in compliance.

Hat tip: MailChimp

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Eddie Davidson was sentenced yesterday to 21 months in jail for falsifying headers and tax evasion.

Sanford Wallace (the spammer that prompted me to start figuring out how to read headers) lost his suit with MySpace for failure to comply with court orders and failing to turn over documents.

Scott and Steve Richter are in the Washington Post today in an article discussing hijacked IP space. Reading the Post article, though, it appears that Scott legitimately bought a business with a /16 and there is no hijacking going on. Spammers have hijacked IP space illegitimately in the past, but this does not seem to be the case.

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It has been one of those weeks here and there have been a couple legal things that have come up that I have not had the time to blog about.

One is a post over on Eric Goldman’s blog by Ethan Ackerman discussing the Jeremy Jaynes case. It is quite an info heavy post, but well worth a read.

In addition to not having the time to fully read Ethan’s post and understand the legal subtleties he is discussion, I have not quite had the time to blog about two e360 filings that showed up this week.

The first is a filing by Spamhaus’ lawyers asking for the judge to compel e360 to participate in the discovery process. If you remember e360 won a default judgment against Spamhaus for over $11M. Spamhaus filed an appeal and the Seventh Circuit Court upheld the judgment but vacated damages. Spamhaus and e360 were ordered to conduct discovery on the damages.

I would assume that e360 would be eager to demonstrate the amount of damages Spamhaus caused them, but it appears this is not the case. According to the filing e360 has been missing deadlines and even skipped a planned deposition. The exhibits show numerous email conversations between the lawyers, with e360’s lawyers making repeated promises to deliver, and then failing to follow through.

There are a couple statements in the filing that stood out. First, this paragraph which contains a statement that should have e360’s lawyers shaking in their shoes.

Moreover, the posture of this case makes Plaintiffs’ failure to timely respond to discovery even more troubling. Plaintiffs’ Motion for Default Judgment, filed almost 21 months ago on August 30, 2006, included an affidavit by David Linhardt, stating under oath that Plaintiffs had suffered (1) loss of revenue from cancelled active and pending contracts of $2.465 million and (2) lost prospective business opportunities, enterprise value and reputational damage in the amount of $9.25 million. Presumably, counsel’s duties required counsel to conduct a proper investigation of the basis for these claims (including supporting documents) before filing any affidavit in August 2006. And yet now in the course of discovery in relation to Plaintiffs’ damages claims, Plaintiffs are unable to timely provide any evidence to support the assertion made under oath in an affidavit to this Court. If Plaintiffs were able to make sworn statements that their damages exceeded $11 million in August 2006, the evidence and documentation used to make that determination should have been provided months ago.

Reading between the lines, the Spamhaus lawyers have thrown down the gauntlet and pointed out that the information used to calculate the damage amount should have been collected before the case was even filed and if they lawyers did not have that information, they failed in their duty as officers of the court. I expect this means that the number has only a slight basis in fact, and e360 is struggling to justify the number they plucked out of the air back in 2006.

Of other amusement, Mr. Linhardt skipped a scheduled deposition back in January. He just plain did not show up, no notice, no excuse, nothing. An unwise move on his part, but the crowning glory is that in the responses to the interrogatories e360 repeatedly objects on the basis that the questions “ask for a narrative and are better answered in oral testimony.” I will give e360 and their legal staff credit, it takes a lot of audacity to avoid oral testimony by not showing up and avoiding written testimony by claiming you would rather testify orally.

The other legal filing this week was a motion by e360 to have the judge in e360 v. Comcast reconsider his decision. It seems that e360 is convinced that Comcast is acting in bad faith and the judge is too since the judge said “some people may call e360 a spammer.” This statement is clearly true, a lot of people call e360 a spammer. This filing seems to be a prelude to an appeal, talking with some legal folks it seems judges are not prone to saying, “You’re right! I ruled wrong the first time!”

Given e360 cannot seem to manage meeting deadlines for a single case, it will be interesting to see how well they meet deadlines handling 2 cases (e360 v. Spamhaus, e360 v. Comcast counterclaim) and an appeal (e360 v. Comcast). Just repeating the same arguments and statements over and over has not gotten them very far up until now. At some point, they are going to have to actually start proving their cases.

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Yesterday Judge Zagel ruled on Comcast’s motion for judgment on the pleadings. I think the tone of the ruling was clear in the first 3 sentences.

Plaintiff e360Insight, LLC is a marketer. It refers to itself as an Internet marketing company. Some, perhaps even a majority of people in this country, would call it a spammer

In the end, the judge ruled that Comcast has immunity for their actions under 230(c) and ruled in their favor.

I grant judgment on the pleadings with respect to the complaint as a whole on the grounds that § 230(c) precludes proceeding on any of the claims. Alternatively, I dismiss the remainder of the claims for the reasons stated above.

The judge has one of the better summaries of 230(c) in regards to email.

The initial question is whether the kind of unsolicited and bulk e-mails (whether you call them spam or mass marketing mailings) are the sort of communications an entity like Comcast could deem to be objectionable. A few courts have addressed the issue and answered “yes.” See Optinrealbig.com, LLC v. Ironport Systems, Inc., 323 F.Supp.2d 1037 (N.D. Cal. 2004) (company that forwarded spam complaints to ISPs entitled to immunity). Indeed, section 230 imposes a subjective element into the determination of whether a provider or user is immune from liability. Zango, Inc. v Kaspersky Lab, Inc., No. 07-0807, slip. op. at 6-7 (W.D. Wash. Aug. 28, 2007) (noting that section 203(c)(2) only requires that the provider subjectively deems the blocked material objectionable); Pallorium v. Jared, 2007 WL 80955, at *7 (Cal. Ct. App. Jan. 1, 2007) (same). This standard furthers one of section 230’s goals “to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services.” § 230(b)(3). Here, there is no question that Comcast, through the use of its numerous programs, software, and technologies, considers the material sent by e360 via e-mail objectionable.

He goes on to evaluate the protections of 230(c) against the text of CAN SPAM

But compliance with CAN-SPAM, Congress decreed, does not evict the right of the provider to make its own good faith judgment to block mailings.  Section 7707 of the Act says that nothing in the Act shall “have any effect on the lawfulness . . . under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle or store certain types of electronic mail messages.”  See White Buffalo Ventures, LLC v. University of Texas, 420 F.3d 366, 371 (5th Cir. 2005); § 7707(c).

Under the law, a mistaken choice to block, if made in good faith, cannot be the basis for
liability under federal or state law.  To force a provider like Comcast to litigate the question of
whether what it blocked was or was not spam would render § 230(c)(2) nearly meaningless.

As the judge has now determined that the protections of 230(c) do apply, and goes on to answer the question “was Comcast acting in good faith” with the answer “e360 did not adequately plead Comcast wasn’t acting in good faith.”

Two other things of note in the ruling. One was the Judge’s comment on the alleged denial of service attack. It was a footnote in the ruling, but worth mentioning.

e360 says, in its brief, that Comcast has also engaged in “denial of service” attacks on their system which acts overwhelm e360’s system and prevent it from sending or receiving e-mails.  e360 also claims that Comcast sends incorrect bounce information to their system with respect to e-mail addresses of those on e360’s opt-in list.  I do not understand what is being alleged.  If e360 means that Comcast is refusing to transmit the e-mails and communicates this fact to e360 by bouncing them back, then it is e360’s choice to submit very large numbers of e-mails for transmission which, after the first Comcast block, it should have known of this possibility and been prepared for it (perhaps by altering its protocols to allow for a connection to be disconnected).  It is hard to see that sending e-mails back, in this context, is a denial of service
“attack” when it is designed to prevent legitimate users of a service from using the service.  It is not an “attack” to prevent users not believed to be legitimate from using a service.  It is also impossible to see the allegations here as stating that Comcast intentionally accesses a computer without authorization.  Unless these computers operate in non-standard ways, the initiation of access is laid at e360’s door, not at Comcast’s.

The other was the judge’s agreement with Comcast that even if 230 did not apply, that e360 failed to state claims on all counts. Another footnote:

Comcast argues that, absent its statutory protection, e360 has failed to state claims on all of its Counts.
(A)  I agree that the Tortious Interference with Prospective Economic Advantage Count is difficult to understand.  I have found no cases in which refusal to allow a plaintiff to run an advertisement in a medium with wide circulation (and thus reducing sales) of plaintiff’s products  or those from whom he is selling constitutes such tortious interference.  Usually the prospective economic advantage is far more concrete than selling to public which consists of people on a very, very long opt-in list.  It is illegal to interfere with a fair number of prospects, but usually they are a class of easily identified individuals and usually the interference is that of the defendant interacting directly with the prospective buyers.
(B)  The claim under CFAA under the “ denial of service” theory fails for the reasons
stated above.
(C)  Comcast is a private enterprise and has no obligation to honor the free speech rights of e360.  C.B.S. v. Democratic Nat’l Comm., 412 U.S. 94 (1973).  Comcast provides services traditionally performed by private enterprises, not the government.  The government does not,  with very few exceptions, connect people with one another through the Internet.  Jackson v. Metropolitan Edison, 419 U.S. 345 (1974) (publicly regulated utility).  The fact that an enterprise is regulated, licensed, or funded by the government does not make the enterprise part of the state.  Wilcher v. City of Akron, 498 F.3d 516 (6th Cir. 2007).

There we go. Comcast prevails, e360 loses. There is no word yet on whether Comcast will continue with the countersuit.

Not being a lawyer, I do not have the credentials or training to fully comment on the ruling. However, in my non-legal opinion, I think the judge demonstrated a firm grasp of the policy and technology involved in blocking spam and applied the law in a way that makes it very, very clear that blocking mail is legal and that a marketing company cannot use the law to attempt to get mail delivered.

Full text of the ruling is up at SpamSuite. I hear he’s currently /.ed so his site might load a little slowly.

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I’ve been working on a document discussing laws relevant to email delivery and have found some useful websites about laws in different countries.

US Laws from the FTC website.

European Union Laws from the European Law site.

Two documents on United Kingdom Law from the Information Commissioner’s Office and the Data Protection Laws.

Canadian Laws from the Industry Canada website.

Australian Laws from the Australian Law website.

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Today I have a copy of the e360 briefing on Comcast’s motion for judgment on the pleadings.

On a superficial level, the writing of e360’s lawyers not as clear or concise as that of the Comcast lawyers. When reading Comcast’s writings it is clear to me that the lawyers have a story to tell and it has a beginning, a middle and an end. They take the reader through the setup, then through the evidence and case law, then proceed to the remedies requested. There is a clear narrative and progression and it all makes sense and the reader is never left standing. This briefing meanders hither and yon, prompting one person to ask was this written on the back of a placemat in crayon.

I still think e360 is misunderstanding or misstating some crucial facts in this case.

e360 argues that because they comply with CAN SPAM, then their mail is therefore not spam. This is not true (see Al’s post, and my post and John’s post). Complying with CAN SPAM does not mean you are not sending spam. I will go even farther to say that sending super-duper-double-confirmed-with-a-cherry-on-top-opt-in email does not mean you will always get through an ISPs filters. The ISPs have moved away from being in the position of having to decide between a mailer who insists a recipient opted in and a recipient who marks mail as spam. Now, the ISPs look at complaints and if you annoy your recipients, then the ISP is going to filter that mail. It is all about relevancy. It is all about not sending mail that is going to make those users hit the “this is spam” button. And endusers have never cared about permission, spam is email they do not want and if you send it, they will complain about it.

They also seem to have this impression that Comcast is letting all e360’s competitors send email to Comcast. Again, it is all about relevancy. If e36o’s competitors are sending mail that users do not complain about then yes, that mail is going to get through. The problem here is not that Comcast is picking and choosing which ESP gets to mail the users, it is that the recipients are choosing which emails they do not object to. Send emails recipients find useful and relevant, and it does not matter that you scraped their address off a website, they will not report it as spam.

Comcast points out that under the Communications Decency Act (CDA) they are not liable for blocking content. The CDA provides for “Good Samaritan” blocking and screening of content under 2 separate circumstances: 230(c)(1) and 230(c)(2). 230(c)(1) says

(1) Treatment of publisher or speaker
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.

ISPs are not liable for anything said by someone else on their service or network. The issue here is not activity by someone else on the Comcast network, though, the issue is activity by Comcast. Accordingly, none of Comcast’s filings have claimed immunity under 230(c)(1).

Comcast has claimed immunity under 230(c)(2), which says

2) Civil liability
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).

Under section (c)(2), it seems Comcast is not liable for actions taken in good faith to block material “otherwise objectionable.” Curiously, in the briefing submitted today, e360 ignores 230(c)(2) and speaks only to case law regarding section (c)(1). e360 even states

e360 is not seeking to hold Comcast liable for the actions or statements of a third-party, rather e360 is seeking to hold Comcast liable for its own actions: Comcast’s indiscriminate and improper blocking of e360’s emails.

If this is truly the case, then why did e360 spend an entire page (out of a 16 page brief) discussing case law around 230(c)(1)?

e360 does comment later that Comcast clearly has immunity to block spam, if it deems spam objectionable, but that as e360 does not send spam, the mail should not be blocked. I think this is tenuous, and may be an issue only because Comcast called e360 a spammer and the email spam. e360 further claims they can produce proof of opt-in for every email address they send email to. I expect that Comcast has e360 email to addresses that never signed up to receive the email (role accounts, employees, etc). I also fully expect e360 to produce opt-in data about those accounts. I am actually looking forward to seeing this question litigated: what constitutes proof of opt-in.

The next argument is legal in nature. e360 says that Comcast is interfering in a business relationship. Comcast says that e360 has a statutory obligation to state the exact relationship that is being interfered with and that Comcast must know of the relationship. e360 argues that as Comcast is blocking the mail, Comcast knows exactly who is being interfered with.

e360 is also vociferously defending its claim that Comcast is committing a denial of service attack on Comcast. The Comcast lawyers had a wonderful analogy for this claim in their motion.

By way of analogy, Plaintiff’s allegations can be compared to a telemarketer who calls a phone number and receives no answer. Instead of hanging up, however, the telemarketer stays on the line and allows the phone to ring and ring, then claims that the owner of the telephone number has damaged the telemarketer because he or she was unable to make any other calls during the time the phone continued to ring.

In this brief, e360 claims the equivalent of “any properly functioning telemarketing software will not hang up if the phone on the other end is still ringing.” They are really reaching on this one.

Continuing the reaching, e360 insists that Comcast is a state actor, because they deliver mail and the USPS is considered a state actor. More legalese trying to convince the court that somehow the policies Comcast posts mean Comcast has to deliver mail sent by e360, and that clause about how Comcast has no obligation to deliver email? Oh, that clause is not relevant to the case. Pay no attention to the man behind the curtain.

All in all, I think the brief is weak and does not compare to the compelling narrative from the Comcast lawyers. While I would like to see some of the issues litigated (what constitutes proof of opt-in), I am not seeing a very persuasive brief from e360. Given the quality of the work from the Comcast lawyers, I expect lots of case law and on point arguments in their reply.

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A couple weeks ago I posted about e360 suing Comcast. The short version is that e360 filed suit against Comcast to force Comcast to accept e360’s email. Comcast responded with a motion for judgment on the proceedings. This motion asked the judge to rule on e360’s case without going through the process of discovery or depositions or all the normal wrangling associated with a legal case. Comcast appears to be saying to the judge even if everything e360 alleges is true, we have done nothing wrong.

The judge asked for each party to prepare full briefs on the motion. e360’s response is due tomorrow and the Comcast reply to that is due on March 27.

Comcast does not appear to be content with just having the case dismissed. Today they filed a counterclaim and third-party complaint. The counterclaim is against e360, the third-party complaint incorporates David Linhardt, Maverick Direct Marketing, Bargain Depot Enterprises, Northshore Hosting, Ravina Hosting, Northgate Internet Services and John Does 1-50. Docs are up over on SpamSuite.

Comcast states the nature of the action in 4 short paragraphs.

1. Defendants operate a business designed to facilitate the e-mail marketing of products and services through, among other things, the sending of unwanted, unauthorized, unlawful and/or otherwise objectionable commercial e-mail messages (generally referred to as “spam”).
2. Internet service providers (“ISPs”), such as Comcast, with the assistance of others, filter e-mail messages to prevent spam from reaching consumers. It is essential to the operation of its ISP services that Comcast utilize the tools at its disposal, tools sanctioned by federal and state law, to protect its subscribers from receiving spam. About 90% of all e-mail sent to Comcast’s subscribers is spam. Comcast filters about 500,000,000 spam e-mails per day.
3. Spammers, on the other hand, try to mask their identities, the origins of their emails, and the nature of their services in order to deliver spam to consumers and to remain profitable. Defendants here utilize a variety of illegal and fraudulent activities to pursue their objectives, and have undertaken various efforts to obscure the nature, scope, and participants in their activities. Indeed, the filing of this action and pursuit of a preliminary injunction and expedited discovery are part of Defendants’ attempts to pressure and harass those who protect consumers from Defendants’ objectionable e-mails.
4. Comcast brings this counterclaim and third-party complaint to prevent Defendants’ ongoing assault on Comcast’s business and to hold Defendant liable for its unlawful acts.

The complaint alleges a lot of bad behaviour on the part of e360 and the third party defendants, and having followed various bits of the e360 saga for the past few months, it appears the Comcast lawyers did their homework on this one. They mention the counterfeit goods marketed by Bargain Depot (1:06-cv-01169-MMM-JAG Maui Jim, Inc. v. Bargain Depot Enterprises, LLC - which Bargain Depot lost), the falsification of opt-in records, advertising “free” services that are not really free and more.

In paragraph 34, Comcast states that Dave Linhardt called Comcast and “fraudulently represented” that all the intended recipients had signed up to receive the mail. It will be interesting to watch this particular argument play out in court. I have no doubt that Comcast has e360 email sent to non-existent users, spamtraps, role accounts and/or employees that will swear under oath that they did not sign up for the mail. e360 will provide data that shows someone opted in that email address on some website at some time. At that point, the judge will have to decide who is telling the truth and who is providing correct data. This is complicated by the chance that anyone could have really entered the email address into a website. What responsibility do mailers have to verify that they are sending mail to people who asked for it and what steps do mailers need to take in order to protect themselves from bad data entered into websites?

In the next paragraph Comcast states that after the initial suit was filed, Comcast reached out to e360 in order to work through e360’s process and why the e360 mail is being filtered. “e360 refused the offer, asserting that it would learn how to circumvent Comcast’’s Filtering System through discovery.” To my non-legal eye this seems to me to be a sign of bad faith on e360’s part.

Comcast goes on to point out e360’s abuse of the legal process, from the suit against Spamhaus, through the multiple suits against individuals. They also mention the “IP Protection Service” sold by e360.

The IP Protection Service entails modifying the third-party marketers’ IP addresses to appear as if they are e360’s IP addresses, or providing the third-party internet marketers access to e360’s servers for use in sending mass e-mail marketing messages through e360’s servers that have been de-listed with Spamhaus pursuant to the Court Order. e360 describes how it plans to use the Court Order to mislead Spamhaus:

“As you know, the American Registry of Internet Numbers (ARIN) assigns all IP address in the U.S. ARIN maintains a registry of all IP addresses on www.arin.net which acts as a kind of phone book for the Internet. When Spamhaus investigates the originating IP address for an email message, they rely heavily on the information provided by ARIN. E360’s IP Identity Management Solution effectively modifies the ARIN listing for your existing ip addresses and points them to one of our legally protected entities. The result is immediate protection against Spamhaus listings as provided by the federal injunction. This solution protects against future listings, and also forces Spamhaus to remove any existing
SBL listings.” [Emphasis Supplied]

Attached as Exhibit B are marketing materials issued by e360 advertising the IP Protection Service.

43. Once the third-party e-mail marketer enrolls in the IP Protection Services, Defendants use the Court Order to request that Spamhaus de-list the third-party marketers’ IP addresses from the ROKSO and/or SBL lists on the basis that the third party is now an “affiliate” of e360 within the meaning of the Court Order.

There are 7 Counts in the filing.

Count 1: Violation of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) of 2003 – 15 U.S.C. § 7704(a)(1). Comcast alleges that mail sent to Comcast subscribers contained false or misleading information about the origin of the email. Comcast asks for statutory damages of $100 for each violation (numbered in the hundreds of thousands or millions) and aggravated damages.

Count 2: Violation of CAN-SPAM – 15 U.S.C. § 7704(a)(2). Comcast alleges that mail sent to Comcast subscribers contained false or misleading subject lines. Comcast asks for statutory damages of $25 for each violation and aggravated damages.

Count 3: Violation of Illinois Electronic Mail Act — 815 ILCS 511/10. Comcast alleges that mail sent to Comcast subscribers contained false or misleading subject lines. Comcast asks for statutory damages of $10 per email message or $25,000 a day.

Count 4: Violation of the Computer Fraud and Abuse Act – 18 U.S.C. § 1030(a)(5). Comcast alleges that the volume of mail sent by e360 significantly degraded the Comcast quality of service. Comcast states damages aggregate at least $5000 in 2007.

Count 5: Trespass to Chattels. Comcast alleges that e360 has intentionally accessed and used Comcast’s servers and networks for their own benefits. Additionally, when Comcast took action (blocking emails) to protect their network, e360 continued to send large volumes of email, thus depriving Comcast and its subscribers of legitimate use of the network and servers.

Count 6: Unjust enrichment. Comcast alleges that e360 has profited by spamming through Comcast’s network at Comcast’s expense and have been unjustly enriched. Comcast asks for disgorgement of all profits from the sending of unsolicited emails to Comcast subscribers.

Count 7: Abuse of process. Comcast states e360 knew that Comcast was protected under the Communications Decency Act when e360 filed the original lawsuit. And e360 knew that Comcast is not a state actor and not liable under the First Amendment. Comcast states the purpose of the lawsuit is to discover how to circumvent ISP filters and undermine the ability of 3rd parties, like Spamhaus, to provide reliable data to ISPs. Comcast also points to the misuse of the Court Order in the Spamhaus matter and repeated suits against people who identified e360 as a spammer as supporting evidence for e360’s abuse of process.

Comcast requests the following:

1. A preliminary and permanent injunction enjoining Defendants, their officers, agents, servants, employees, attorneys, and any persons or entities in active concert or participation with any of them, from:
   1. directly or indirectly sending unsolicited or unauthorized commercial emails, including but not limited to any such e-mails that reference or use in any way Comcast’s property, computers, domains, servers, networks, or users;
   2. directly or indirectly circumventing Comcast’s Filtering System for the purposes of sending commercial e-mails to Comcast’s subscribers;
   3. directly or indirectly sending any commercial e-mail messages, whether or not lawful, unless and until each Defendant has certified to the Court andComcast, and confirmed the certification at periodic intervals, that it andall their affiliates and business partners comply with the best practices setforth by the Messaging Anti-Abuse Working Group (“MAAWG”) SenderBest Communications Practices, attached hereto as Exhibit D, or suchother practices as this Court may deem appropriate to order; and
   4. directly or indirectly profiting from any of the acts prohibited by paragraphs 1(a), (b) and (c).
2. Within ten (10) days of entry of any injunctive order, Defendants be required to file and serve an affidavit detailing the form and manner in which each has complied with the terms of the injunction;
3. An award of statutory, compensatory, and aggravated damages to Comcast;
4. Disgorgement of the Defendants’ profits and imposition of a constructive trust on all moneys received and all profits generated by Defendants’ sprint pcs ringtones downloadfree phone ringtones verizon wirelessfree kyocera ringtonesfree mp3 ringtones converterfree get ringtonescaller download hotlink ringtonesdownload free kyocera ringtonescell cingular free phone ringtonesfree cingular music ringtonesericsson polyphonic ringtones sonymaker ringtones xingtonefree metro pcs phone ringtonesbollywood free latest ringtonesabsolutely free ringtones download,absolutely free ringtones,absolutely free ringtones sprint pcsno faxing payday loaninstant payday loanno fax payday advance loanpayday loan companycalgary loan payday,calgary payday loanfast loan online paydaybest payday loanbest payday loan company,company loan payday,new payday loan companycost loan low paydaypayday advance loan colorado,payday advance loan new york,payday advance loancash advance payday paycheck,payday cash advance oregon,payday cash advanceonline payday loan servicepayday loan cash advance loanday loan payday same,day loan no payday same teletrackonline payday loan instant approvalfax loan no no payday telecheck,absolutely fax loan no payday,fax loan paydaycanada loan manitoba payday winnipeg,canada loan payday,all payday loan in canada onlypayday loan canadapayday cash loanday loan payday quick same,cash day loan payday same,same day payday loanonline payday loan applicationadvance? cash loan online payday ?fee loan low paydayfax loan no online paydayquick payday loansavings account payday loanpayday payday loan cash advance loan,advance cash cash loan loan payday quick,advance cash loan paydayinterest free payday loan,payday first loan free,free loan paydayquick payday advance loan30 day payday loanadvance america payday loangeorgia loan payday,georgia in loan online paydayfast cash payday advanceone hour payday loansonic payday loan,loan payday sonicquick cash payday loan illegal activities;
5. An award of Comcast’s attorneys’ fees and costs; and
6. An award of such other and further relief as may be just or equitable.

Generally, I think that the Comcast legal team is determined to win this and are not messing around with the facts. The rumors about e360’s precarious financial situation make me wonder if Dave is going to be able to afford this legal wrangling or if he has found some angel investors with a lot of money to throw into the US court system.

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Yesterday, I talked about e360 filing suit against Comcast. Earlier this week, Comcast responded to the original filing with some filings of their own.

1. Response to the original complaint and affirmative defense.
2. Motion for judgment on the proceedings
3. Memo of law supporting the motion for judgment

In this set of filings, Comcast argues that even if everything e360 says is true, they are doing nothing wrong by blocking e360’s email to their users. The filings themselves are well crafted and tell a clear narrative. There is quite a bit of case law in the memorandum of law, demonstrating that ISPs have the right to protect their users from objectionable material.

The motion for judgment asks the court to rule on the pleadings without any further legal proceedings. Comcast states that they are immune under the Communications Decency Act of 1996 (“CDA”), 47 U.S.C. § 230. They also argue e360 has failed to state a claim upon which relief can be granted. In the memo of law to support the motion Comcast states:

Through this lawsuit, Plaintiff seeks to hold Comcast liable for legally and effectively managing the amount of spam and junk mail received by its subscribers. Plaintiff advances four theories of liability for Comcast’s alleged blocking of Plaintiff’s emails: (1) tortious interference with prospective economic advantage under Illinois common law; (2) violation of the federal Computer Fraud and Abuse Act (“CFAA”); (3) infringement of Plaintiff’s free speech rights in violation of the First Amendment; and (4) deceptive or unfair practices under the Illinois Consumer Fraud Act (“ICFA”).

Plaintiff’s claims are barred by federal law which preempts such attempts to put spammers’ pecuniary interests above those of consumers and the ISPs who endeavor to protect them while effectively manage their networks. Under the Communications Decency Act of 1996 (“CDA”), 47 U.S.C. § 230, Comcast is immune from liability for its actions to block objectionable material like Plaintiff’s mass e-mails. Also, all of Plaintiff’s claims fail as a matter of law.

After that introduction, Comcast presents a number cases which support their claims. The Comcast memo of law seems to me to hit the right points. Venkat, over on the Spam Notes blog reluctantly agrees that the Comcast motion might win. However, he does offer the following advice to the Comcast lawyers.

Throwing around the “s” word has not proven to be particularly effective in unsolicited email litigation (see, e.g., Virtumundo; Mummagraphics). Whether or not they hate spam, judges have shown that they are more interested in applying the technical requirements of the law, as opposed to whether someone has been labeled as a “well known spammer” by a certain organization based in the UK.

I do not think that Comcast is relying on Spamhaus’ statements about e360 for blocking. My experience suggests that Comcast’s filtering is more granular and specific than Spamhaus. A number of my clients, who never have any problems with Spamhaus occasionally run into delivery problems at Comcast. Futhermore, I think Venkat misses the underlying reason the Mummagraphics and Virtumundo cases were lost by the people throwing the “s” word around. I think they lost because the technical requirements of the law were on the side of the groups labeled as spammers. In this case, however, it seems to me that the technical requirements of the law fall squarely on the Comcast side.

The above statement also suggests to me that Venkat seems to buy into the mythology that blocking decisions by ISPs and/or major blocking organizations (like Spamhaus) are capricious and uninformed. Nothing could be further from the truth. I have spent a lot of time with people running incoming ISP filters and blocklists. Most of those individuals, and particularly those with large user bases, are very cognizant of their responsibility to their users. They do not want to block mail users want and set the parameters such that they block as much unwanted mail as possible and let through as much wanted mail as possible. These groups collect reams and reams of data on their blocking and feedback from users in order to make sure their blocking is as accurate as possible.

If it comes down to it, I have no doubt that Comcast will be able to produce hard numbers demonstrating that mail from e360 did not meet their standards for acceptance or delivery. The case may get to that point, depending on what the judge rules. In this case, the law seems solidly on the side of Comcast.

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A few weeks ago I very briefly touched on the recent lawsuits filed by e360 against Comcast and a group of anti-spammers. In the Comcast suit (complaint here) e360 argues that Comcast is unfairly and incorrectly blocking e360’s email and are liable for damages to e360’s business.

They have a number of claims, including

1. Comcast cannot block e360’s mail because it is CAN SPAM compliant
2. e360 complies with Comcast’s AUP
3. Comcast lets e360’s competitors send mail to Comcast’s users
4. Comcast is lying to e360 when they reject mail, causing e360 to delete valid addresses from their email list
5. Comcast is committing a denial of service attack against e360 by tarpitting email.
6. Comcast is mean and will not tell e360 exactly why the mail is being refused.

The original complaint seems to be a list of complaints that e360 cannot effectively send mail to Comcast. Because other mailers can meet Comcast’s standards, this leaves e360 at a competitive disadvantage and therefore Comcast must change their filtering policies to allow e360 to send mail into Comcast users.

Two of the claims are peculiar. One that Comcast is lying to e360 with their block messages. As an example, e360 claims that

Comcast has transmitted fraudulent bounce information to e360’s mail servers specific to email addresses contained on e360’s opt-in marketing list. The responses sent by Comcast mail servers to e360 are fraudulent because they contain information indicating that the email address is invalid and not active.

Elsewhere in the filing e360 says:

e360 received the following error message from Comcast for all of the messages e360 attempted to send. “550 5.2.0 63.210.103.209 blocked by ldap:ou=rblmx,dc=comcast,dc=net -> BL004 Blocked for spam. Please see http://www.comcast.net/help/faq/index.jsp?faq=SecurityMail_Policy18628”

I see what e360 is trying to claim here, that a 550 response means the address is invalid according to RFC821/2821. I do not think they are going to get very far with this claim, as a plain reading of the response text makes it clear why the mail is not being accepted and provides a path to resolution. Furthermore, close reading of the RFCs makes it clear that 550 is a response used for unknown users or access denied. Clearly, Comcast refusing email from e360 falls into the access denied category of the RFCs.

The other peculiar claim is that Comcast is committing a denial of service attack against e360 by tarpitting e360’s servers. There is absolutely no way that Comcast can cause a problem for e360 in this manner unless e360 cooperates. If any connection is open and little or no traffic has been sent and this is causing you problems then drop the connection. There is no reason to hurt your own systems by keeping silent connections open.

To my non-legal eyes, I do not think e360 has much of a case. Not only is Comcast protected by statute, including the CDA, there is also case law going back more than 10 years saying that ISPs can block mail. This seems to be an attempt by e360 to force ISPs to accept unwanted email.

Comcast responded to the suit earlier this week. Tomorrow I will post about their response, and oh, what a response!

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This time e360 is in court suing a number of individuals for calling him a spammer.

Mickey has docs up on SpamSuite.com and Ken Magill has written about it as well.

Dave has also responded to ReturnPath, through Ken, with a public letter explaining why his statement disagrees with ReturnPath’s statement about his acceptance into the SenderScore Certified program.

Rumor has it that Dave is claiming he is out of money. If that’s true, who is funding these cases?

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