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Email and law in the news

A couple things related to the intersection of email and law happened recently.

The 6th circuit court ruled that the government must have a search warrant before accessing email. The published opinion is interesting reading, not just because of the courts ruling on the law but also because of the defendant. Berkeley Premium Nutraceuticals toyed with spamming to advertise their product as a brief search of public reporting sites shows. The extent and effort they went to in order to stay below the thresholds for losing their merchant accounts is reminiscent of the effort some mailers go through to get mail through ISP filters.

The other bit of interesting reading is the Microsoft motion to dismiss the case brought against them by Holomaxx. It is a relatively short brief (33 pages) and 3 of those pages are simply a listing of the relevant cases demonstrating ISPs are allowed to filter mail as they see fit. 2 more pages are dedicated to listing the relevant Federal and State statutes. I strongly encourage anyone considering suing any large ISP to to read this pleading. These lawyers understand email law inside and out and they are not going to mess around. They also have both statute and case law on their side. They point this out before the end of page 1:

Holomaxx’s claims against Microsoft are without merit. First, Claims 3-6 and 9—based on Microsoft’s filtering of Holomaxx’s e-mails—are barred by the Communications Decency Act of 1996 (“CDA”), 47 U.S.C. Section 230. The CDA explicitly exempts service providers such as Microsoft from liability for filtering of objectionable content, including objectionable e-mail.

Through the CDA, Congress immunized Microsoft from precisely the sort of liability that Holomaxx seeks to impose here. Indeed, one federal court recently held that claims based on e-mail filtering were barred by the CDA. See e360Insight, LLC, 546 F. Supp. 2d at 609-610. The same analysis should be adopted here. Further, even accepting Holomaxx’s allegations as true, every cause of action based on Microsoft’s filtering activities (Claims 1-6 and 9) independently fails to state a claim upon which relief may be granted, as Holomaxx has failed to allege legally sufficient facts and puts forth theories that are unsupported in the law.

Suing ISPs to force them to accept mail is a failed business model, the law is just not on the senders’ side.

9 comments

  1. Steve White says

    After reading Microsoft’s motion to dismiss, I am certain that the case will be dismissed in favor of Microsoft. (I personally still feel that CDA is being abused by the ISPs).

    Regardless, Microsoft has good lawyers, but they should know that “conclusorily” is not a word. At least not one I can find anywhere.

  2. The Proverbial Barry says

    no wait laura dont tell them that!!

    i want to see more spammers try to sue isps
    they will always lose and it is fun to watch

  3. Steve White says

    The FCC has just passed the net neutrality law which in part contains the following language “…while also preventing ”wired carriers from blocking lawful applications and services.”

    I’m hearing senders saying this could be grounds for a lawsuit based on filtering on the ISP side. CDA says ISPs can block “objectionable” content – while this law says “lawful applications and services” cannot be blocked. Does that mean that means that lawful CAN-SPAM compliant messages shall not be blocked?

  4. Al Iverson says

    Steve White: Do you get a cookie every time you manage to work in a comment about how spam blocking is illegal now and it’s only a matter of time until the lawsuits come?

  5. Steve White says

    Al,
    No I don’t get a cookie. I have to explain to senders that they’re doing everything right and despite that their inbox delivery to Yahoo is abysmal. Meanwhile, the vice president who implemented the new filter at Yahoo is out for the holidays. Besides, it’s an interesting question that I pose. It’s possible that the holomaxx case could respond to the dismissal by referencing this new law. It’s no secret, I’m for senders rights.

  6. William Silverstein says

    Senders rights?

    What rights does a sender have to use another person’s equiptment? Are the senders paying for the use of that equiptment?

    While a potential recipient has a right to expect delivery and could even make a claim under breach of contract, the sender has no privity and are not named in the contract that the potential recipient has with the ISP.

  7. The Proverbial Barry says

    look to your responsibilities first before you start talking about rights

  8. Bill Silverstein says

    And what responsibility do I have to a third party? This third party does not pay me to deliver their advertising to a person using my e-mail server. People using my servers do not want spam, and my responsibility is to them, not to some spammer.

  9. Amendment is futile. – Word to the Wise says

    […] 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 […]

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