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Judge rules in e360 v. Comcast

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.

3 comments

  1. Why Marketers Need to Go Beyond CAN-SPAM’s Modest Requirements | UsefulArts.us says

    […] reasons not to. Recently, James B. Zagel of the U.S. District Court in Northern Illinois rulled in e360 v. Comcast that Internet service providers (ISPs) are not liable for mistakenly blocking even […]

  2. Useful Arts Online Law Blog says

    Though unscrupulous marketers *can* spam, its good that ISP’s can filer their messages based on any number of good faith measures, such as sessage content (buy viagra), sender address (i sell viagra), or even patterns of user complaints (enough with the viagra already).
    This puts subscribers back in charge. If subscribers ever feel over filtered, you can bet ISPs will quickly respond to them.
    I’ve linked to your article from my blog on online law – and look forward to reading more of your posts on Email, the Internet’s true killer app. Thanks!

  3. We’re gonna party like it’s 1996! – Word to the Wise says

    […] There is existing case law that states that spam blocking falls is protected under the CDA, including e360Insight, LLC v. Comcast. […]

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