e360 v. Comcast: part 2


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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  • In my experience (undoubtedly which is less than yours) companies are erratic about their filtering decisions. Some ISPs have excellent procedures and documentation, others not so much. I have definitely come across at least one ISP which relied significantly on the Spamhaus list. And I have also seen significant problems with that list. It sort of becomes a self-referential loop – spamhaus refers to someone as a spammer, and ISP in turn blocks based on the spamhaus listing, and next thing you know, someone’s a spammer because numerous different sectors and people are saying so.
    Anyway, your point is well taken. Also, I came across a post on the Fish Blog about a supposed DNS attack undertaken by Comcast against e360. Not sure what to make of it (and I’m skeptical), but this could tweak the Section 230 analysis somewhat.

  • Hi, Venkat,
    I can see why you think companies are erratic about filtering decisions, but I think that filtering decisions may look erratic to the outside because most legitimate senders do not see the tons and tons of illegitimate spam and viruses that ISPs are battling against. The filtering criteria implemented by larger ISPs are usually done in response to some specific spammer behaviour.
    As for Spamhaus, their criteria are clear – do not send mail to people who did not ask to receive it. The ISPs that rely on Spamhaus listings do so because Spamhaus philosophy fits their own, they believe the listings Spamhaus listings are accurate and, most importantly, their user base does not complain about the filtering.
    In my experience, senders and receivers speak very different languages and what is clear language to one side is gobbledegook to the other. I often describe my job as a delivery consultant as “interpreter” that is I speak both sender and receiver. I think a lot of the confusion and misunderstanding about what receivers are doing stems from this language difference.
    I looked around for the Fish Blog post, as this was the first I have heard about accusations of Comcast and a DNS attack against e360. I did not find the blog post, so if you have a link, I am interested in seeing what DNS attacks e360 is alleging.

  • Here’s a link to the post.
    As to Spamhaus and filtering I think they are very erratic in their decisionmaking. Your definition nailed it. There are a ton of companies who send email that users don’t really “ask” for but they don’t end up on Spamhaus list (bigger, more established companies). On the flipside, merely sending unsolicited email is NOT a CAN-SPAM violation. The email has to be misleading. That’s why I always raise my eyebrows when someone says that “X is a spammer because Spamhaus says so”.

  • Probably worth reading the comments to the post – I don’t have an opinion as to the viability of the DNS attack claim. My instinct is that it’s not very strong, but the question will be whether it allows e360 to get past some initial hurdles.

  • Spamhaus has listed big established companies, I’ve worked for at least one Fortune 100 company who has bought a list and ended up with bad addresses on their list and subsequently had some of their IPs listed on Spamhaus. Who you are and the size you are has never, in my experience, been a part of the Spamhaus decision making process.
    As for “X is a spammer” I have heard people say that about lots of companies. I mean, there are people who have accused me of being a spammer because I actually work for companies who send mail that the accuser does not like. I believe the word itself is meaningless and the accusation likewise. If your mail is being delivered, then you are good. If your mail is not being delivered, then there is something wrong. If that something is that you are listed on Spamhaus, then you need to deal with them and fix the underlying problem with your mail.
    I have read the post you linked to, but I do not see anything in there about a e360 alleging there was a DNS denial of service attack from Comcast. The only mention of DNS is in the quote from Wikipedia describing that as one particular type of DoS attack. In the filing itself the only allegation of a DoS is that Comcast was keeping connections open for 5 hours.

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