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.

Related Posts

MAAWG: Not a Marketing Conference

There seems to be this great misunderstanding among a huge number of email marketers and delivery professionals that MAAWG is some sort of marketing or marketing related conference.
They’re wrong.
MAAWG is the Messaging Anti-Abuse Working Group. The intention of the group is to provide a setting where companies providing internet services can work together to stop abuse. Email is one of the major platforms talked about, but there are also discussions about other forms of messaging abuse.
This conference is unique both in its content and in the people who attend. For many ISP reps this is their sole opportunity to get together with peers, former co-workers and friends. Many of the ISP folks are actually low to mid-level employees who are working the front lines fighting abuse every day. MAAWG is a chance for them to work and socialize with people who understand their jobs and the challenges associated with handling abuse on a daily basis. It’s a place to look at the larger issues and blow off steam.
There are a number of folks who show up at the conference that don’t deal with abuse in any capacity, however. They don’t have to deal with rampant levels of spam heavy enough to take down a mailserver. They don’t have to deal with the horror that is child porn. They don’t have to deal with angry subscribers. They don’t have to deal with criminals.
In short, they’re not abuse desk folks. They are, at best, a delivery person but more often are some high level executive at a marketing firm. These folks treat MAAWG as a place to wheedle business cards and contacts from the ISP reps. Stop abuse? The only abuse they see is that their email isn’t instantly delivered to the inbox.  Spam? That’s what other people send. Phishing? Child porn? Not important.
All too many of them are not even subtle or coy about the fact that their only concern is finding contacts. One ISP rep tells the story of some marketer that followed him into the bathroom and attempted to trade business cards while the ISP person was at the urinal. Make no mistake, this is not an isolated incident. The badgering is so bad that some ISP reps refuse to state who their employer is.
The ISP folks are there to actually spend time with their peers and y’know, do actual work. ISP reps are not there to get hassled by dozens of marketers.
To be fair, a number of ESPs send delivery folks who are actually working to stop abuse. They do chase spammers through their systems. They do deal with criminals. Unfortunately, because they are from ESPs they are prohibited from actually working with the ISPs.
Why? Because so many of the ESP reps aren’t actually there to stop abuse that MAAWG has had to draw firm lines between ESPs and ISPs to make the ISP reps feel comfortable. I can’t fault MAAWG for that even as I can see there are ESP reps who perform the exact same job functions as the ISP reps.
The ESPs have created this situation. Instead of sending folks on their side who deal with messaging abuse, they send high level executives and marketers. They send people who think that the ISPs owe them something. That believe the ISPs will let mail through just because they shared a beer at the conference. That believe there is some inner circle and if they join they can find out the secret sauce so they can get their mail through filters. They send people who think that ISPs should be forced to sit at a table and listen to marketers yell about “the false positive problem.”
This isn’t to say ESPs and marketing companies shouldn’t join MAAWG and go to conferences. There’s a lot of abuse that both groups have to deal with. But MAAWG isn’t a marketing conference. Sending only marketers or executives to the conference not only misses the point of the organization, it actively sabotages it.

Read More

Holomaxx dismisses part of lawsuit

Ken announced yesterday that Holomaxx dropped their suits against Ironport and ReturnPath. Suits against Yahoo and Hotmail are still active.
In the Yahoo case, there is a case management meeting on January 14th.
In the Microsoft case, a response the complaint is due by December 17th.
I’m not quite sure what happened to prompt this change, but I think it makes it even more unlikely that the case will be successful. The courts have repeatedly ruled in favor of ISPs in these kinds of cases.
EDIT: I’d link to Ken’s article, but I appear to have closed that tab and I can’t find it on his website. I’ll add it as soon as I do.
EDIT: Ken’s announcement

Read More

Freemail opens

Justin Coffey commented on my check your assumptions post pointing out his data on opens related to ISPs. He says:

Read More