Wiretapping and email

An Alabama resident is suing Yahoo for violating the California wiretapping law. Specifically he’s suing under CA Penal Code section 631. The thing is, this section of the law deals with wiretapping over “telephone or telegraph” wires. That doesn’t seem to apply in this case as Yahoo isn’t using either telephone or telegraph wires to transmit their packets.
Holomaxx tried the wiretapping argument when they sued Yahoo and Hotmail. That case cited a cause of action under both federal law and California law. The wiretapping claim was addressed specifically by the lawyers for the defendants.

California’s criminal privacy statutes were meant to protect intrusion on confidential conversations, not restrict filtering of bulk emails from commercial email advertisers. See People v. Newton, 42 Cal. App. 3d 292, 296 (1974). Here, Plaintiff is admittedly a bulk “email service provider” who derives its revenue from sending “marketing emails” and advertisements and by being “paid a fixed amount per email sent.” (See, e.g., FAC ¶¶ 16-17.) Plaintiff cannot credibly claim either an expectation that its advertising emails stay private or an unawareness that its communications would be subject to possible spam filtering. Indeed, the very opposite is true.13 See People v. Nakai, 183 Cal. App. 4th 499, 518 (2010).
Nor does Plaintiff cite any case law where a state wiretapping or eavesdropping claim in the context of electronic mail, survived a motion to dismiss. This is because sections 630 and 631 of the Penal Code were enacted to protect communications over telephone or telegraph and “a court is not free to advance the public policy that underlies a statute by extending the statute beyond its plain terms and established reach.” See Moallem v. Coldwell Banker Commercial Group, Inc., 25 Cal. App. 4th 1827, 1833 (1994); Membrila v. Receivables Performance Mgmt., LLC, 2010 WL 1407274, at *2 (S.D. Cal. Apr. 6, 2010) (Section 631 limited to telephone or telegraph claims).

Given there is case law that states the California wiretapping / eavesdropping statute only applies to telephone or telegraphic communications, I don’t think this potential class action suit is going very far.
Other posts on this case

 

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Still futile

As I mentioned last Thursday, both Yahoo and Microsoft filed oppositions to Holomaxx’s opposition to dismissal. Let me ‘splain… no, there is too much, let me sum up.
Holomaxx sued both Microsoft and Yahoo to force MS and Yahoo to stop blocking mail from Holomaxx.
The judge dismissed the initial complaint with leave to amend.
Holomaxx filed a first amended complaint.
Microsoft and Yahoo both argued that the first amendment complaint should be dismissed because it wasn’t fixed.
Holomaxx filed a motion in opposition to the motion to dismiss. Their arguments were reasonably simple.

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Robust protection under the CDA

Venkat also commented on the Holomaxx v. MS/Y! ruling.

As with blocking or filtering decisions targeted at malware or spyware, complaining that the ISP was improperly filtering bulk email (spam) is likely to fall on unsympathetic ears. It would take a lot for a court to allow a bulk emailer to conduct discovery on the filtering processes and metrics employed by an ISP. (Hence the rulings on a 12b motion, rather than on summary judgment.) Here the court reiterates the “good faith” standard for 230(c)(2) is measured subjectively, not objectively. That puts a heavy burden on plaintiffs to show subjective bad faith.

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Not just you

This morning (9 or 10 am Pacific) my various mailing lists were lighting up with questions about Yahoo delays. A lot of people reported they were seeing Yahoo respond “420 Resources Unavailable, try again later” on connect.
What everyone wanted to know was is if other senders were seeing this.
The answer was a resounding YES.
And, in fact, Yahoo commented on Facebook around 2pm Pacific that they had a mail outage and were trying to bring services back up before close of business today.
As with many things, the Internet rumor mill is one of the fastest and astonishingly accurate sources of information about mail servers falling over.
I started hearing reports that queues were clearing mid-afternoon pacific, but not everyone is seeing that.
So, yes, Yahoo is having a bad day. And it’s not you, it’s not spam, it’s just that some of their mail servers fell over and they’re struggling to accept all the mail headed their way.
It happens.
If you’re interested in hearing more timely updates, I will often announce things like this on twitter when I hear about them.

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