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How Not to Get Your Mail Delivered

John Levine

A small company in suburban Philadelphia called Holomaxx recently filed two lawsuits against large webmail providers, complaining that they weren't delivering mail from Holomaxx. The first suit is against Microsoft and Return Path, and the second suit is against Yahoo and Cisco/Ironport. Neither is going anywhere.

According to the complaints, Holomaxx has been sending bulk mail for ten years. They send about 10 million messages a day, six million to Yahoo, and three million to Hotmail/MSN. That was kind of surprising to hear, since 10 million messages a day would be a fairly large mailer, and nobody I know has ever heard of them. This case generated a fair amount of buzz and we all had the same reaction: Who's that? The complaints identify specific IP addresses from which they mail; I've never seen any mail from any of those addresses, and neither has anyone else I've bumped into. (Needless to say, I haven't asked Microsoft or Yahoo.)

Holomaxx claims that they are 100% CAN SPAM compliant. That may well be true, but of course, that has no bearing on whether they're sending spam. The complaint says their customers get a lot of addresses from co-registration, i.e., people who signed up at web site A but checked (or more likely didn't uncheck) a box saying it was OK to get mail from B, C, ..., ZZZ. Co-reg is a sleazy business, and legitimate mailers view co-reg addresses with extreme skepticism. Poking around Holomaxx's web site, I note that one of their properties is selling credit repair audio courses, As Seen On TV, again not something that inspires confidence.

So it seems reasonably likely to me that a lot of the mail that Holomaxx sends is unwanted by its recipients, but even if Yahoo and Hotmail are mistaken and every recipient is delighted with what Holomaxx sends, they still don't have a case. The complaints argue at great length, that Holomaxx' mail is CAN SPAM compliant, Return Path and Ironport are defaming them by reporting poor scores in their reputation systems SenderScore and SenderBase, and by golly, since their mail is CAN SPAM compliant, Microsoft and Yahoo have to deliver it straight to the inbox.

Well, no. CAN SPAM says in section 7707(c):

Nothing in this chapter shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages

That is, mail providers can filter mail any way they want. Since Holomaxx's suit cites sections of CAN SPAM, they really can't argue that they're unaware of what it says. Furthermore, the Communication Decency Act specifically says that good faith blocking of unwanted material is legal. Extensive case law confirms that the CDA applies to spam blocking, and it applies even if the blocking makes mistakes. E360 tried this strategy in a suit against Comcast in 2008, and, to put it mildly, it didn't work.

Holomaxx's suit goes on to make complaints under a variety of other laws, all of which appear to my non-lawyer eye to be utterly bogus. They complain that Yahoo and Microsoft are wiretapping their own mail systems, that they're interfering with Holomaxx's contracts because they made rash promises that they could deliver mail to Yahoo and Microsoft users, and so forth.

So the question isn't whether they'll win, it's how fast they'll lose, and how badly. Given that most if not all of the claims involve gross misreadings of the laws they purport to apply, I'd think that Holomaxx may well have to pay the defendants' legal costs, and their lawyers risk sanctions for filing a totally frivolous case.

By John Levine, Author, Consultant & Speaker. More blog posts from John Levine can also be read here.

Related topics: Email, Law, Spam

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