Judges protect right to boot suspected spammer

A federal appeals court has ruled that EarthLink was within its rights to disconnect a customer who it incorrectly believed to be spamming.

EarthLink pulled the plug on independent film producer Peter Hall's account in August 1997 after receiving a report from UUNet, its network provider, that Hall was sending out bulk junk e-mail. Realizing its mistake about a week later, EarthLink offered a public retraction and forwarded Hall about 16 e-mail messages that had accumulated in his account during that time.

It's unclear what happened next--each side accuses the other of being unwilling to reconnect the account--but EarthLink ended up accepting e-mail messages to Hall's account and quietly storing them in a mail spool rather than bouncing them as undeliverable. Hall sued EarthLink for $2 million in July 1998, charging that the initial disconnection was unlawful, and that the missed e-mail resulted in his low-budget film, "Delinquent," becoming a flop.

The 2nd Circuit Court of Appeals ruled Tuesday that Hall's legal theories were speculative and affirmed a lower court's ruling that dismissed the case. Hall claimed that Internet service providers fall into a "public interest" category that prevents them from quickly booting customers who they honestly believed were spamming.

"Hall's claims against EarthLink flow from the contract, and Hall has not shown that EarthLink owed him an additional duty (beyond the contract) which would justify relief," the three-judge panel concluded.

One of the more novel portions of the lawsuit, filed by Washington, D.C., lawyer Andrew Grosso, claimed that EarthLink violated federal wiretapping laws by "intentionally intercepting" his inbound e-mail.

The appeals court rejected that reasoning, saying that "EarthLink's continued reception of e-mails" didn't count as an interception because it was conducted as part of the ordinary course of business for an Internet service provider. Federal law grants any Internet or telephone provider an exception for devices or technology used "in the ordinary course of its business."

The panel upheld a December 2003 district court ruling that tossed out a battery of other charges that Hall had levied against EarthLink: breach of the implied covenant of good faith and fair dealing, prima facie tort, libel, negligent appropriation of electronic communication, intentional interference with electronic communication, and breach of contract.

[hadaso]

They shouldn't have kept his mail

Earthlink shouldn't have kept the customer's mail. they should have either rejected all mail immediately, or forward the mail to an email address of his choice. Any other behaviour means loss of email.

Even if the contract and the law allows an ISP not to reject email sent to a former customer's mailbox that was closed, it should always be handled by either rejecting so senders no it was not received, or by allowing the former customer access for a limited period to the mailbox, at least through forwarding. It's the decent thing to do. Even free email providers should act this way (i.e., allow the user to terminate an account and then reject email immediately. Many services only allow discontinuation by abandoning an account and letting it die, meaning that email is not rejected and therefore lost)

[jfsayre]

Don't trust your film to Earthlink...

Huh?

This is a real life catch-22. Obviously, the judges don't like underground film production. But the way they dismissed the suit is a travesty.

By effectively ruling before hearing any evidence that Hall couldn't have lost any real money due to the interruption, the court concluded that the suit was too petty to be heard there, and dismissed the whole thing. Cute...

One of the recurrent difficulties with law is when judges overlook (willfully, in some cases) the reality of the facts. Here the provider was accepting nearly a years' worth of personal messages for Hall, without letting him know or letting the senders know that they hadn't been delivered. If Earthlink had simply bounced the mail, anyone who really wanted to get in touch with Hall probably could have found another way to do so - phone, fax, smail mail, or another email address. But instead the senders no doubt just assumed that Hall had lost interest, or wasn't reliable, and that was that. Film festivals, like book publishers, have far more prospective material than they can handle, so they're not going to chase a producer who doesn't respond to his messages. Maybe Delinquent was a dog, and wouldn't have been shown at the festival anyway, but Hall had purchased the account to market it, and he was entitled at a minimum to have Earthlink honor its side of the bargain.

To paraphrase the old country song, "don't trust your film to no backwoods Circuit judges, cause the isp hoards email on its drives..." (Sorry - it would be a lousy song, but then this was a lousy decision.)

[Razzl]

Need the meat of the story

The 2 previous respondants seem to think they know all the details of the case but to me the important parts have been left out--just what did he do to make them think he was sending spam? Was there a problem with the format, quantity, or timing of the messages? A reader can have no useful opinion on this until we know whether the complainant was actually doing something unreasonable or not. The devil is in the details...