November 4, 1996 4:45 PM PST
Junk emailer down for the count
"The Court declares that Cyber Promotions does not have a right under the First Amendment to the United States Constitution or under the constitutions of Pennsylvania and Virginia to send unsolicited email advertisements over the Internet to members of America Online," said Judge Charles R. Weiner, of the U.S. Court for the Eastern District of Pennsylvania, in his ruling.
The ruling reasserts AOL's right to block email from Cyber Promotions and a host of junk email-generating sites, according to David Phillips, associate general counsel for AOL. The online service has been waging a war with spammers since September when it began blocking mass, unsolicited email.
A judge had ruled in AOL's favor in September, but that ruling was based on a procedural issue. This ruling, however, "is the first ruling in this case, or in any other case, on the merits of the issue," Phillips said.
"This is a clear decision for AOL on the major issue in this case," he added. "It sets a clear precedent that marketers do not have an unequivocal right to mass-solicit members on the Internet."
Sanford Wallace, president of Cyber Promotions, said that the ruling "does not mean that Cyber Promotions is prohibited from sending commercial email. It simply means AOL can continue blocking unsolicited email.
"The bottom line is it will be a very sad day when a few powerful media companies like AOL can control Internet traffic in a way that benefits their own financial interests," Wallace added.
AOL and other Internet service providers have complained that junk emailers end up getting a free ride because email is free, unlike "real" junk mail, for which the sender must pay.
Mike Godwin, staff council with the Electronic Frontier Foundation, also took issue with the ruling.
"I think it's the right outcome but the wrong reasoning," he said. Godwin believes Cyber Promotions does have a First Amendment right to send email. By the same token, AOL has the right, as a private company, to block it.
In the end, if Wallace appeals the ruling, Godwin says the appeals court judge probably will issue the same order but base it on different reasoning.
Wallace said he is deciding whether to appeal. He has been sued in recent weeks by several ISPs, including CompuServe and Prodigy. Both have complained that Wallace is using their services to get around AOL's spam block and in the process, clogging up their systems.
Cyber Promotions has used accounts at Prodigy, CompuServe, and others as return email addresses in junk mail sent to AOL to bypass the AOL filters. The practice also has meant that undeliverable mail is automatically shunted to the ISP in the return address, a practice that has snarled their mail servers.
Wallace said today that he'd stop the practice immediately if AOL changed the way its block works. Currently AOL's PreferredMail blocking system automatically filters mail from several domain names that have sent out junk email. To receive the junk email, members must go to the mail area and turn off the PreferredMail option. Wallace argued that it should work the other way around: PreferredMail should remain off until a member specifically turned it on.
If that were the case, he said, he would stop changing the headers and use only one domain name.
AOL's Phillips said that AOL is doing all it can to stay "several steps ahead" of Wallace. "We anticipate junk emailers will do their best to circumvent our technical blocks." But, he added, the blocks must be effective, or Wallace wouldn't be fighting AOL in court.