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.
- Response to the original complaint and affirmative defense.
- Motion for judgment on the proceedings
- 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.