E360 gets its cased tossed out
I'm always the last spam blogger to comment on these legal cases. I'll continue in that tradition by throwing in my two cents.
SpamSuite has a copy of the ruling which is only seven pages long. Some highlights from the document:
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.
Now there's an understatement. I wondered what e360 was doing going after a big player like Comcast. Comcast has deep pockets composed a very long rebuttal against e360. Apparently the court agrees with their characterization.
It is clear that Congress understood that it would not be enough to pass a law against mass electronic mailings. It knew that servicers like Comcast would create software to identify, filter, and block e-mail messages that were unwanted.
Congress thinking ahead? Since when does that happen?
It knew, too, that the details of such software could not be publicly disclosed, so as to prevent them from being easily evaded.
I have seen it speculated that e360 had no hope of winning this lawsuit and that the only reason that they launched it was in order to figure out Comcast's spam filter. In other words, they filed the suit in order to make it easier to spam. Congress foresaw and passed provisions granting antispam providers immunity if they did it in good faith:
No provider or user of an interactive computer service shall be held liable on account of –
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be . . . objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable . . . the technical means to restrict access.
This grants antispam vendors the means to block mail that they feel is illegitimate and grants no recourse to senders, even if they are in compliance with the CAN-SPAM act.
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.
Exactly. The CAN-SPAM act says what mass senders have to do in when they send bulk mail. It doesn't mean that recipients are then obligated to receive it. It would be like requiring banks to disclose all the terms and conditions (which they already do) but then requiring the loan applicant to accept the loan once it is offered.
Comcast now has a countersuit on the table against e360. This case could end up sinking those guys if Comcast decides to follow it all the way through.