A decision by Judge James Zagel of the U.S. District Court of Northern Illinois affirms an Internet service provider’s (ISP) right to block e-mail spam coming in to its customers.
e360 Insight, widely considered a spammer, had sued Comcast, Inc., alleging restraint of trade and unfair practices and accusing Comcast of violating e360’s First Amendment rights. On April 10 the court denied all of e360’s claims.
Federal Law Applied
The court stopped short of declaring e360 a “spammer” but said the marketing content the company provides is exactly the type the 1996 Communications Decency Act (CDA) allows Comcast to block.
In its summary judgment for Comcast, the court relied on the federal law (47 USC ยง230) created by the act, which says in part, “No provider or user of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be … objectionable, whether or not such material is constitutionally protected.”
Problem Likely to Continue
Lex Hopper, former owner of an Illinois-based ISP, noted fighting spam is a “constant, ongoing headache.” He said, “It’s a balancing act because the criteria for what is spam and what is legitimate vary from person to person. When we set filters, setting the criteria too loosely resulted in too much spam getting in, so customers would complain. Set them too tight, and people would miss legitimate messages from their mailing lists, or whatever, so we’d get those calls.”
John Bambenek, an author and system administrator who maintains an email service, notes spammers other than e360 Insight have also brought lawsuits against ISPs for blocking e-mails. “They’ve all been unsuccessful, largely on the grounds that an ISP has more or less full authority to control their own network and resources,” he said.
Market Can Stop Spam
Bambenek doubts filtering will stop spammers. “As long as they are making money, they’ll keep spamming,” he said. “The solution to spamming isn’t technical” or legal, he said, but to use the marketplace to “target those who pay spammers and profit from spamming” and make that business unprofitable.
Spam accounts for more than 90 percent of email worldwide, and most spam messages contain false sender information. “Spam is not a bug or an accident, not something we can correct with a simple fix. It’s so difficult to fight because it’s deliberate abuse,” Hopper said.
“There is a trend toward hiding the source of messages,” which makes e360 something of a “bitter-ender,” Bambenek notes. “Most spammers hide behind botnets or move operations overseas to friendlier jurisdictions. It may affect those organizations in the gray area of spamming,” but few people want to risk being known as a spammer, he noted.
“Anti-spam solutions, as they get better, will help reduce the spam that gets through to [make it] useless for actual commerce,” said Bambenek.
“The only practical effect of the lawsuit is for the courts to once again reaffirm businesses and ISPs have full rights to control spam,” Bambenek said. “If any lawyer was shaky on spam filtering, this ruling all but puts to death any argument.”
Loren Heal ([email protected]) writes from Neoga, Illinois.
Loren Heal ([email protected]) is a research programmer at the University of Illinois at Urbana-Champaign and a reporter for The Heartland Institute.
