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If It Spams Like a Duck…

J.D. Falk

"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. e360 sends e-mail solicitations and advertisements, for a fee, to millions of e-mail users. More than a few of those users are subscribers to Comcast, an Internet service provider. Many e-mail users do not want to see (or delete unread) the messages sent by e360. Even if every user wanted these e-mails, Comcast might well have its network overloaded by the mailings."

-- Judge James B. Zagel, e360Insight, LLC vs. Comcast Corporation,
Memorandum Opinion and Order filed April 10, 2008

We've been wondering what e360 hoped to gain with their recent lawsuits against Spamhaus and others. If they were trying to clarify the right of ISPs to protect their users from spam, then they've certainly done a good job — especially in this particular case.

If it wasn't clear before, Judge Zagel's explanation should satisfy even the most pedantic of filtering opponents:

  1. ISPs acting in good faith to protect their customers are not liable for blocking messages that some spammer claims are not spam
  2. "...compliance with CAN-SPAM...does not evict the right of the provider to make its own good faith judgement to block mailings."
  3. an ISP rejecting messages, during the SMTP session, that a spammer knowingly sent to them, does not constitute a "denial of service" attack against the spammer
  4. saying "hey, you let those other spams through, why not me?" is just dumb (that's my interpretation, of course; the judge used more polite language)

It's statement #2 above — the one about CAN-SPAM — which will have the most direct and immediate effect on companies who try to walk the edge between spam and legitimacy. Complying with CAN-SPAM is the bare minimum required by law; as the courts have stated before any sender has to do a lot more to get their mail delivered into other peoples' inboxes.

Unfortunately, this case won't affect most spam. The near-unbelievable volume of messages sent every day are sent by individuals who don't even pretend to comply with any law, and who know that if they ever tried to file suit against Spamhaus or Comcast or anyone else they'd be laughed out of court — and most likely arrested.

Even so, CAUCE thanks e360, Comcast, and Judge Zagel for providing us with a good laugh and a small ray of hope in the fight against spam.

Stay tuned for the results of Comcast's counter-suit against e360.

This article was previously posted on cauce.org.

By J.D. Falk, Internet Standards and Governance. More blog posts from J.D. Falk can also be read here.

Related topics: Email, Spam


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Re: If It Spams Like a Duck... john brumage  –  Apr 30, 2008 12:21 PM PDT

add this line to your HELO:
"By submitting email for delivery through this server, you agree to pay $1 per receipiant"

add appropriate verbiage to your price sheet.

follow the money trail.

Mail an invoice for "Email Advertising Service"
example: 10,000 emails @ $1 each = $10,000.00

if they don't pay, hand the invoice to a collection specialist.

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