I had the pleasure of meeting some of the Mailchimp legal staff last year when I was down there to do on-site training for their abuse desk employees. I was quite impressed with them and their understanding of privacy and email issues.

This is a lawsuit by a frustrated spammer to attempt to force Defendant Yahoo! Inc. (“Yahoo!”) to deliver millions of Plaintiff’s mass marketing emails each day to Yahoo! customers— namely, users of Yahoo! Mail. No matter the legal theory Plaintiff advances, Yahoo! has no legal obligation to do so. Several courts already have confronted similar claims and soundly rejected attempts by mass e-mail marketers to impose civil liability on email service providers like Yahoo! for blocking bulk commercial email. This Court should as well.

They go on to point out that the communications decency act explicitly immunizes them from liability for their blocking decisions. Yahoo! also spends multiple paragraphs pointing out that the initial lawsuit is deficient legally as it false to state a claim of violation for many of the provisions.

Yahoo! describes their interactions with Holomaxx in 2 paragraphs.

Plaintiff is a self-described mass marketer that attempts to send over 6 million “marketing” emails per day to Yahoo! users. Compl. ¶ 16. By Plaintiff’s own characterization, Yahoo! users complained consistently and vociferously about Plaintiff’s spamming, registering between 6,000- 18,000 complaints a day about Plaintiff’s marketing activities. Id. ¶ 18. In an effort to assist Plaintiff in better complying with Yahoo!’s terms of use, Yahoo! both warned Plaintiff about the escalating user complaints and directed Plaintiff to review and implement Yahoo’s policy on email use and best practices. Id. ¶ 41(a), (c).

Plaintiff does not allege it ever complied with these best practices. Nor does Plaintiff allege that Yahoo! deviated in any way from its standard policies in filtering Plaintiff’s emails as spam. The application of Yahoo!’s usual and customary filtering techniques, triggered by the virtual tidal wave of Plaintiff’s mass marketing emails and resulting Yahoo! user complaints, coupled with Plaintiff’s apparent failure to bring its practices in conformity with Yahoo!’s policies, resulted in the blockage of “most” of Plaintiff’s emails by Yahoo! servers, prior to delivery. See id.

There’s a real nugget of information in this paragraph. If we look at the numbers here (6,000,000 emails a day and 6,000 to 18,000 complaints) we can infer that the Yahoo! filters kick in at a complaint rate between 0.1 and 0.3%.

One of the Holomaxx allegations is that Yahoo! is in violation of federal wiretap laws and illegally accessed mail stored on Yahoo!’s own servers. Yahoo! laughs in the face of these allegations. This is not an area of law I am that familiar with so I don’t have much commentary.

There were two places in the document where Yahoo!’s lawyers use the phrase “black letter law.”  One was in reference to the alleged violation of the federal wiretap statute.

It is black letter law that accessing emails while they are in storage does not qualify as an “interception” under the Act, since for purposes of the Act, interception means acquisition at the time of transmission. See Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 460 (5th Cir. 1994). Electronic communications in storage are specifically excluded from reach of the Act.    In making this distinction, Congress not only carved out access to electronically stored communications as an actionable Wiretap violation, but “deliberately structured [ECPA] to afford electronic communications in storage less protection than other forms of communication.”

The second was in reference to the alleged violations of CA state law. Yahoo! asserts that it is under no legal obligation to deliver plaintiff’s mail and that Yahoo!’s conduct was justified. Yahoo! also asserts that it is black letter law that not every interference in a contract is an actual tort.

Interference with a contract is justified “when the person is seeking to protect an interest of greater social value than that attached to the stability of the contract involved.” [...]

In this case, Yahoo! is justified by its own economic interest in being able to provide email services that promote a good user experience (i.e., as free as practicable from bulk email advertisements), and that do not tax its systems and resources. There is also a broader social interest at stake in reducing exposure to bulk email.

Yahoo concludes their motion:

For the reasons stated above, Plaintiff’s Complaint should be dismissed in its entirety without leave to amend. Amendment would be futile in this case.

I’m not a legal scholar, but this looks like a solid motion. I would actually be surprised if the judge doesn’t grant the motion to dismiss without leave to amend. ISPs are very protected against liability for their good faith spam filtering decisions. The whole argument about wiretapping seems to be an attempt to find some cause of action. Yahoo! is very clear that there is no case and they are immunized.

I’d like to see both this case and the Holomaxx v. Microsoft case go to trial, if only because they are being heard near here and I could actually go. But I don’t expect that to happen. I just don’t think Holomaxx has a case.

First is e360 v. Spamhaus. This is the case that actually prompted me to start this blog and my first blog post analyzed the 7th circuit court ruling sending the case back the lower court to determine actual damages. The lower court ruled this week, lowering the judgment to $27,002 against Spamhaus. The judge ruled that there was actual tortuous interference on the part of Spamhaus. In my naive reading of the law, this strikes me as not only an incorrect ruling, but one that ignores previous court decisions affirming that blocklists are protected under Section 230. Venkat seems to agree with me.

Spamhaus had a viable Section 230 argument here, but this argument got lost in the procedural quagmire. Section 230(c)(2) protects filtering judgments and insulates “action taken to enable or make available to information content providers or others the technical means to restrict access to material [that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable].” (See Professor Goldman’s post discussing Pallorium v. Jared, a California state appeals court case where the court held that a publisher of list of IP addresses for open relays could not be held liable. See also Zango v. Kaspersky.)

I do hope that Spamhaus appeals this ruling.

Second is Microsoft Corporation v. Mizhen et al. This is going to be an interesting case, I think. Microsoft is suing Mizhen, among others, alleging that he gamed Microsoft’s filters by opening up millions of Hotmail accounts and hitting “this is not spam” for his own mail.

The complaint details how Mizhen and his affiliates allegedly manipulated the statistics that Microsoft’s anti-spam system relies on by creating millions of new email accounts and then moving up to 200,000 of their own messages a day from “junk” files into inboxes.

This is actually the second time Microsoft has sued Mizhen. The first case was settled and Mizhen had to pay Microsoft $2,000,000 and promise not to spam MS users any longer, but I suspect that Mizhen may not get off so easy this time.

On the good side, Tagged.com won a judgment against a spammer sending spam to Tagged.com users. (Tagged has a post on their blog about the win, but the direct link to that article doesn’t work).

On the minus side, yet another ruling against tagged.com. They’ve been accused of sending spam, including some mail that looks like a phish. They recently settled in a CA court, agreeing to dispose of certain addresses collected during a 3 month period in 2009.

Tagged promised that it will destroy address book information that was scraped from users who joined the site between April and June, if those users either didn’t send any invitations to their contacts or invited all of their contacts to join the site. The company did not admit wrongdoing as part of the settlement.

Their victory against the spammer might be more compelling if they, themselves, were not repeatedly ending up at the defense table for customer unfriendly practices.

Facebook said Thursday a California court has awarded the social networking Web site $711 million in damages in an anti-spam case against Internet marketer Sanford Wallace.”

Sanford. Wallace.

The man who so abused junk faxes in the early 1990s that Congress passed the Telephone Consumer Protection Act of 1991.

The man who was one of the early, notorious players in the spam industry.

A man who was one of the first spammers sued by a large ISP, and lost.

The man who sued AOL in 1997 and lost, creating some of the first case law that allows ISPs to block mail that their users don’t want.

A man who has reveled in his status as a rogue, pushing limits and making money for himself.

A man who has gone from dubious enterprise to dubious enterprise, changing fields when the legal bills and judgments got too high.

Sanford. Wallace.

I still remember some of the first spam I got from savetress.com, one of Cyberpromo’s primary domains. The first few messages were annoying, but when I started getting tens of spam a day (yes, tens, it was a different world on the ‘net then) I decided to start learning about email, how it worked and how to protect my accounts from spam. It was his lawsuit against AGIS that prompted my first foray into the net-abuse newsgroups. Talking with Sanford about his new, legitimate marketing business was my first experience in negotiating with spammers. While I hate to actually say “Sanford Wallace changed my life,” it’s not that far from the truth. Frustration over his spam led me to a career of being an email expert. Interaction with people as frustrated as I was not only introduced me to a new circle of friends, it also resulted in me meeting the man who is now my husband.

I just spent 3 days with a bunch of people who make email work; talking and troubleshooting with them to figure out just how to keep email working and useful in the face of massive and sophisticated spam attacks few of us imagined 10+ years ago. I don’t often think about what it was like when I was first on the internet, when you could actually open an unfiltered mailbox and have only mail from friends (or no mail at all!). How ironic that while winding down from that conference I find that Sanford is, once again, losing a lawsuit for abusing the internet.