Spam – Attorney Evan Brown

March 23, 2011 Spam

Yahoo not liable for blocking marketing email

Section 230 of Communications Decency Act (47 U.S.C. 230) shields Yahoo’s spam filtering efforts

Holomaxx v. Yahoo, 2011 WL 865794 (N.D.Cal. March 11, 2011)

Plaintiff provides email marketing services for its clients. It sends out millions of emails a day, many of those to recipients having Yahoo email addresses. Yahoo used its spam filtering technology to block many of the messages plaintiff was trying to send to Yahoo account users. So plaintiff sued Yahoo, alleging various causes of action such as intentional interference with prospective business advantage.

Yahoo moved to dismiss, arguing, among other things, that it was immune from liability under Section 230(c)(2) of the Communications Decency Act. The court granted the motion to dismiss.

Section 230(c)(2) provides, in relevant part, that “[n]o 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 obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

Plaintiff argued that immunity should not apply here because Yahoo acted in bad faith by using “faulty filtering technology and techniques,” motivated “by profit derived from blocking both good and bad e-mails.” But the court found no factual basis to support plaintiff’s allegations that Yahoo used “cheap and ineffective technologies to avoid the expense of appropriately tracking and eliminating only spam email.”

The court rejected another of plaintiff’s arguments against applying Section 230, namely, that Yahoo should not be afforded blanket immunity for blocking legitimate business emails. Looking to the cases of Goddard v. Google and National Numismatic Certification v. eBay, plaintiff argued that the court should apply the canon of statutory construction known as ejusdem generis to find that legitimate business email should not be treated the same as the more nefarious types of content enumerated in Section 230(c)(2). (Content that is, for example, obscene, lewd, lascivious, filthy, excessively violent, harassing).

On this point the court looked to the sheer volume of the purported spam to conclude Yahoo was within Section 230’s protection to block the messages — plaintiff acknowledged that it sent approximately six million emails per day through Yahoo’s servers and that at least .1% of those emails either were sent to invalid addresses or resulted in user opt-out. On an annual basis, that amounted to more than two million invalid or unwanted emails.

July 13, 2010 Fraud/Misrepresentation, Spam

State law spam claim in federal court not pled with required particularity

Hypertouch, Inc. v. Azoogle.com, Inc., 2010 WL 2712217 (9th Cir. July 9, 2010)

Pleading in federal court is generally a straightforward matter. Federal Rule of Civil Procedure 8 requires only that the plaintiff set forth a short and plain statement as to why that party is entitled to relief. But in cases involving fraud, there is a heightened pleading standard imposed by Rule 9.

In the case of Hypertouch, Inc. v. Azoogle.com, Inc., the plaintiff sued the defendants in federal court over almost 400,000 allegedly spam email messages. Hypertouch brought claims under California law (California Business and Professions Code § 17529.5(a)) but did not meet the heightened pleading standard of Rule 9. So the district court dismissed the case.

Plaintiff appealed to the Ninth Circuit. On review, the appellate court affirmed. It found that not only does the California statute speak in terms of commercial e-mail advertisements that contain “falsified,” “misrepresented,” “forged,” or misleading information — terms common to fraud allegations — but the complaint repeatedly described the advertisements and their content as “fraudulent.” The court held that plaintiff could not circumvent the requirements of the Rules by arguing that it did not plead all of the allegations sufficiently to set forth a claim of fraud.

It’s important to note that the court made clear, despite its holding, that it was not articulating a standard for pleading under this California statute. It merely found that in the circumstances of this case, the claim was not pled with the requisite particularity.

November 6, 2008 First Amendment, Spam

Government spam blocking not a violation of First Amendment right to petition

Ferrone v. Onorato, No. 07-4299, 2008 WL 4763257 (3rd Cir. October 31, 2008)

The Third Circuit Court of Appeals has held that a county government did not violate a citizen’s First Amendment right to petition the government for a redress of greivences when the county set its spam filters to block all email from the citizen’s domain. There was no evidence that such blocking was done with intent to deprive the citizen of his Constitutional rights, or with reckless disregard of those rights.

The founding fathers managed Spam — The Founding Fathers managed Spam

The Allegheny County, Pennsylvania office of economic devlopment was getting a lot of email from press@rock-port.com. A county official directed that his IT staff block all future messages sent from that address. Accidentally, however, the filter was set to block all messages from the @rock-port.com domain from being sent to any county account.

Plaintiff Ferrone, who was already in a dispute with the county, tried sending 14 email messages to various county officials over the course of five weeks. Because of the spam filter settings, the messages did not get through. So Ferrone sued, claiming a violation of the First Amendment right to petition the government for a redress of grievences. The county moved for summary judgment and the court granted the motion. Ferrone sought review with the Third Circuit. On appeal, the court affirmed.

The court held that the First Amendment’s prohibition on the “abridgement” of the right to petition the government requires a plaintiff to show an actual intent on the part of the government to diminish this right. The court refused to accept Ferrone’s argument that the act of blocking email messages alone, without an examination of the government’s intent, would rise to the level of a constitutional violation. Rejecting Ferrone’s attempts to “plump” up his “specious claim” by throwing in the First Amendment, the court held that no reasonable factfinder could have found a violation of Constitutional rights.