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23 Jan 2008
E360 Insight is a small bulk emailing house near Chicago run by David Linhardt with a chronic spam problem. He gained fame last year due to a meretricious suit against Spamhaus involving strange twists and turns, mostly due to Spamhaus getting some dreadful legal advice. My September blog entry described the current status of this case.
Last Tuesday he filed a remarkable suit against giant cable ISP Comcast. I have just read a PDF copy of the complaint (courtesy of spamsuite.com) and each page is more amazing than the last.
His general concern is that Comcast blocks all his mail, rejecting it as spam, which it almost certainly is. (Every bit of mail he's attempted to send to my users has been unsolicited and unwanted ads.)
The first count is Tortious Interference with Prospective Economic Advantage, that is, he would have made $9 million if those nasty people at Comcast hadn't blocked his mail. Even if you grant his absurd claims about the nature and value of the mail he tried to send, Federal law, 47 USC 230, gives blanket immunity to good faith spam blocking, and there's plenty of case law to confirm that the law means what it says.
But wait, the second count claims they violated the Computer Fraud and Abuse act, because Comcast has been engaged in denial of service attacks against E360. How? By rejecting his mail too slowly, and not providing rejection codes detailed enough for him to do listwashing, with $3 million in damages. Really. This is an ingenious theory, approximately the same idea as beating your head against a brick wall, then suing the owner of the wall for giving you a headache.
And finally, the pièce de résistance: Comcast is violating his First Amendment rights. This is a truly impressive bit of legal creativity. The last time I checked, the First Amendment applied to the government, not to private businesses, which may explain why the damages for this one are only half a mil.
The final count is unfair competition and business practices, arguing that Comcast delivers mail from other senders whose practices are just like his, based on secret agreements of which he has no evidence but he's sure ("on information and belief") exist. That's very naughty, and is worth $9 million.
Comcast shouldn't have much trouble disposing of this suit, but in the meantime my friends and I have been scratching our heads trying to figure out what the point was of filing it. The simplest explanation is that he's nuts, and thinks he can win. One of the claims he makes is that since Comcast uses Spamhaus' blacklists, and since (he claims) Spamhaus has illegally listed E360, Comcast is somehow at fault, too. The final theory is that he's hoping they'll settle because it's cheaper than going to trial. I hope Comcast at least goes through a round of discovery, since there's a lot of stuff about E360 that would be interesting to know, like just where their mailing lists come from.
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