Blocking 'spammers' can cause legal troubles
September 19, 2000 12:00 AM PT
by Eric J. Sinrod
 
Deciding how to regulate unsolicited commercial email (aka "spam") is a highly charged issue. Governmental regulation has not gone very far in this area, so technological measures have been devised. These measures, however, have resulted in controversy and litigation.

Some states have enacted anti-spam laws that impose different requirements and penalties for violations. Some of these laws require that the letters "ADV" be written in an email's subject line to designate advertisements, that emails provide accurate return phone numbers and email addresses, and that recipients must be able to decline further emails from the sender.

Questions have been raised about the ability of states to regulate email traffic that crosses state lines. Courts in Washington and California have struck down certain anti-spam laws as unconstitutional, based on concerns that states should not impose differing requirements on interstate commerce.

Though many anti-spam bills have been introduced in Congress, the federal government has not yet passed any legislation to regulate unsolicited commercial email. Without an overarching law controlling the situation, concerned individuals have pursued technological efforts to thwart spam.

Technological black holes

Mail Abuse Prevention Systems LLC, or MAPS, a nonprofit organization headquartered in Redwood City, Calif., attempts to put together blacklists that identify individuals or companies that send spam. Internet service providers subscribe to the blacklists (also known as "black holes") and are then able to block email sent by MAPS' alleged spammers.

Needless to say, those individuals or companies whose emails MAPS has blocked have not been happy, and litigation has ensued.

Several months ago, CMGI's (CMGI) Yesmail.com, a Chicago-based "permission marketer," filed suit against MAPS as a result of having been added to MAPS' Realtime Blackhole List (or RBL). Yesmail claimed that it sends email only to people who request email and that it was damaged by having been labeled a spammer.

MAPS apparently took the position that Yesmail did not follow a "double opt-in" procedure supported by MAPS, meaning Yesmail does not obtain a second confirmation from an individual requesting email.

Two months ago, Yesmail won a temporary restraining order against MAPS. The federal court in Illinois barred MAPS from listing Yesmail as a company that sends bulk spam.

After this court ruling, MAPS agreed to remove Yesmail from the RBL, and Yesmail put its litigation on hold. Soon after, the case was settled, presumably on terms favorable to Yesmail.

Harris sues MAPS

Shortly after the Yesmail litigation went to court, market research firm Harris Interactive filed suit in a federal court in Rochester, N.Y., against MAPS and a number of Internet companies. Harris alleged that MAPS unfairly blacklisted Harris as a spammer and that the Internet companies blocked Harris emails to approximately 2.7 million of the 6.6 million users who participate in Harris public opinion surveys. Harris sought injunctive relief and monetary damages.

As in the Yesmail litigation, MAPS identified Harris as a spammer because it allegedly did not follow a double opt-in procedure. Harris also alleged that it wrongly was "nominated" to be on the black hole list by a competing market research firm.

After filing suit, Harris dismissed AOL (AOL) as a defendant, because AOL agreed not to block email from Harris. Harris also settled with Microsoft (MSFT) when the software giant agreed that Harris' emails could reach Hotmail users.

Meanwhile, the federal judge in the case refused to grant a temporary restraining order that would have forced MAPS to remove Harris from the RBL. The judge did not find immediate "irreparable" harm to Harris, but the denial of Harris' request for a temporary restraining order simply meant that the court did not want to rule on an emergency basis, and Harris still could pursue its usual rights in court.

As the battle waged on, Juno Online Services (JWEB) and BellSouth (BLS) both stopped blocking Harris' emails and were dismissed from the lawsuit. Last week Harris put an end to the lawsuit entirely, apparently because it felt it had accomplished its goals.

We haven't seen the end of email black hole litigation. MAPS' influence is huge: 20,000 companies that control 40 percent of Internet email accounts subscribe to the RBL.

The solution?

There is no silver bullet for the spam issue. State laws have helped, but they don't protect emails that cross state and national boundaries.

Federal law has not yet stepped in. When it does, it is hoped that the government will add regulatory uniformity. But even such uniformity will not be able to control perfectly all circumstances relating to unsolicited commercial email.

Finally, technology can be of value to block out some unwanted spam. But, as we have seen, branding a company a spammer can have serious legal consequences.

Eric J. Sinrod is a partner focusing on Internet legal issues in the San Francisco office of Duane, Morris & Heckscher LLP. He can be reached at ejsinrod@duanemorris.com. Please feel free to check out his website at http://www.sinrodlaw.com. To receive weekly email notifications regarding Upside Counsel columns, please send an email to ejsinrod@duanemorris.com and type 'add to Upside list' in the subject line of the message.

Disclaimer: This column is meant to educate and inform and it has not created any attorney-client relationships. For legal advice, contact an attorney with expertise in your area of concern. If you would like to submit a letter to the editor regarding this story, email online@upside.com.