Comcast and e360 settle lawsuit


e360 initially filed suit against Comcast early in 2008. They asserted a number of things, including that Comcast was fraudulently returning “user unknown” notices and that they were certified by ReturnPath. Comcast filed a countersuit alleging violations of CAN SPAM, violations of the computer fraud and abuse act, as well as a number of other things including abuse of process. In April of 2008 the judge ruled in favor of Comcast and dismissed e360’s case, while allowing the countersuit to proceed.
Over the last 18 months, the suit has moved through the courts. There have been significant delays in the case, and e360 seems to have been dragging their feet based on some of the motions filed by Comcast asking the judge to compel e360 to follow through on discovery.
Today, only weeks before the trial date, a settlement agreement was filed. The settlement agreement prohibits the defendants and any group associated with them from transmitting email to any domain owned by Comcast without affirmative consent (as defined by CAN SPAM). All mail sent by the defendants must comply with the Comcast Terms of Use or AUP. The defendants must not attempt to circumvent Comcast’s spam filters, must comply with CAN SPAM and must not help anyone else violate any of the provisions of the agreement.
The agreement also prohibits mail from defendants that:

  • contains any false headers, including fraudulent or false corporate information
  • contains any false or misleading subject lines
  • lacks clear and conspicuous notice of the ability to opt-out
  • identifies the sender only as a domain name
  • lacks a valid physical postal address and the actual name of the sender
  • uses or redirects users to any IP address that does not contain accurate identification.

The last 3 points are the biggies. They require that e360 stand up and stand behind any email they send. No more hiding behind false fronts, drop boxes, domains by proxy or any of the other ways that spammers hide their connection with the spam.
Comcast has crafted an agreement that stops e360, or any of Dave Linhardt’s businesses, from spamming their users. And they have expressly prohibited many of the standard techniques spammers use to hide their connection with the spam.
A settlement agreement isn’t precedent, which is a bit of a shame. A legal precedent that says that hiding behind domains by proxy, hiding behind random and rotating domain names and hiding a sender’s corporate identity from email recipients is a violation of any of the statues that Comcast sued under would be a good thing. Sure, spammers will continue to do all those things, but they will be further marginalized from legitimate by their violation of case law.
Previous blog entries about e360 v. Comcast:

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  • Hi,
    I just wanted to share that there is good strong legal precedent that such spammer behavior is illegal, in the recent 9th Circuit opinion of USA v. Kilbride, (9th Cir., Nov. 11 2009).
    It has many good, common sense rulings throwing back a lot of the hand waving and smoke that spam defendants have tried using, with unfortunately some success, in lower court rooms. Highlights include:
    “Defendants also argue that the definition of “material falsification” renders § 1037 unconstitutionally vague specifically as to whether it would criminalize private registration of a domain name. As testified to at trial, private registration is a service that allows registration of a domain name in a manner that conceals the actual registrant’s identity from the public absent a subpoena. We fail to perceive any vagueness on this point. Based on the plain meaning of the relevant terms discussed above, private registration for the purpose of concealing the actual registrant’s identity would constitute “material falsification.””
    “In the headers of their bulk emails, Defendants intentionally replaced the email addresses from which the emails were sent with fictitious addresses. It is quite obvious that this constituted intentionally causing to be different or preventing the disclosure of the actual header information in a manner diminishing the ability of recipients to identify, locate, or respond to Defendants or their agents in violation of § 1037(a)(3). Defendants also intentionally replaced the actual phone and contact person for Ganymede with fictitious infor- mation. […] Even were this not the case, “impair” clearly is not synonymous with “completely obstruct.” To impair, according to its plain meaning, merely means to decrease. It should have been clear to Defendants that intentionally falsifying the identity of the contact person and phone number for the actual registrant constitutes intentionally decreasing the ability of a recipient to locate and contact the actual registrant, regardless of whether a recipient may still be left some avenue to do so. We therefore conclude Defendants had notice that their conduct violated § 1037.”

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