e360 v. Comcast: part 1

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!