Home / Blogs

Email and Law in the News

A couple things related to the intersection of email and law happened recently.

The 6th circuit court ruled that the government must have a search warrant before accessing email. The published opinion is interesting reading, not just because of the courts ruling on the law but also because of the defendant. Berkeley Premium Nutraceuticals toyed with spamming to advertise their product as a brief search of public reporting sites shows. The extent and effort they went to in order to stay below the thresholds for losing their merchant accounts is reminiscent of the effort some mailers go through to get mail through ISP filters.

The other bit of interesting reading is the Microsoft motion to dismiss the case brought against them by Holomaxx. It is a relatively short brief (33 pages) and 3 of those pages are simply a listing of the relevant cases demonstrating ISPs are allowed to filter mail as they see fit. 2 more pages are dedicated to listing the relevant Federal and State statutes. I strongly encourage anyone considering suing any large ISP to to read this pleading. These lawyers understand email law inside and out and they are not going to mess around. They also have both statute and case law on their side. They point this out before the end of page 1:

Holomaxx’s claims against Microsoft are without merit. First, Claims 3-6 and 9—based on Microsoft’s filtering of Holomaxx’s e-mails—are barred by the Communications Decency Act of 1996 (“CDA”), 47 U.S.C. Section 230. The CDA explicitly exempts service providers such as Microsoft from liability for filtering of objectionable content, including objectionable e-mail.

Through the CDA, Congress immunized Microsoft from precisely the sort of liability that Holomaxx seeks to impose here. Indeed, one federal court recently held that claims based on e-mail filtering were barred by the CDA. See e360Insight, LLC, 546 F. Supp. 2d at 609-610. The same analysis should be adopted here. Further, even accepting Holomaxx’s allegations as true, every cause of action based on Microsoft’s filtering activities (Claims 1-6 and 9) independently fails to state a claim upon which relief may be granted, as Holomaxx has failed to allege legally sufficient facts and puts forth theories that are unsupported in the law.

Suing ISPs to force them to accept mail is a failed business model, the law is just not on the senders’ side.

By Laura Atkins, Founding partner of anti-spam consultancy & software firm Word to the Wise

Filed Under


Comment Title:

  Notify me of follow-up comments

We encourage you to post comments and engage in discussions that advance this post through relevant opinion, anecdotes, links and data. If you see a comment that you believe is irrelevant or inappropriate, you can report it using the link at the end of each comment. Views expressed in the comments do not represent those of CircleID. For more information on our comment policy, see Codes of Conduct.

CircleID Newsletter The Weekly Wrap

More and more professionals are choosing to publish critical posts on CircleID from all corners of the Internet industry. If you find it hard to keep up daily, consider subscribing to our weekly digest. We will provide you a convenient summary report once a week sent directly to your inbox. It's a quick and easy read.

I make a point of reading CircleID. There is no getting around the utility of knowing what thoughtful people are thinking and saying about our industry.

Co-designer of the TCP/IP Protocols & the Architecture of the Internet



New TLDs

Sponsored byRadix


Sponsored byDNIB.com


Sponsored byVerisign

IPv4 Markets

Sponsored byIPv4.Global

Brand Protection

Sponsored byCSC

Domain Names

Sponsored byVerisign

Threat Intelligence

Sponsored byWhoisXML API