Eclectical Engineering

The firm E360 Insight LLC describes itself as “…a marketing solutions company specializing in highly effective, multichannel direct marketing.” At least one of those channels appears to be devoted to litigating against any and all parties who attempt to block its marketing e-mailings. The latest chapter in E360’s continuing courtroom saga involves the cable internet giant Comcast; E360 has filed suit against Comcast in an Illinois court for blocking E360’s advertising e-mails. Documentation for the case is posted at the indispensable SpamSuite.com website.

E360’s complaint against Comcast (for which it seeks over $21 million in compensatory damages) boils down to four allegations:

1. That Comcast practiced restraint of trade by using spam filters that blocked the delivery of marketing e-mails that E360 claims it had prior permission to send. E360 also alleges that Comcast was wrong to deny them access to details of its spam blocking system so they could find ways to get around it (!!).
   • ISPs have been blocking spam for a decade or more, and 99.9% of the time have managed to avoid being sued for this practice, so it isn’t clear whether this allegation is going to fly, particularly if E360 cannot prove that they are being singled out for special mistreatment rather than being blocked for simply acting like spammers (and thereby getting on third-party blocking lists).
   • Comcast indicates in its response that, as an internet service provider, it is immune from such charges because of its obligations under the Communications Decency Act, which allows ISPs to take measures to block offensive content.
   • Comcast also argues that while it provides services to allow its users to send and receive e-mail, it rejects E360’s contention that it has a duty to see that all such messages are sent.
2. That Comcast violated the Computer Fraud and Abuse Act (18 USC 1030) in blocking mail deliveries from E360. E360 alleges that Comcast’s spam filtering system amounts to a “denial of service attack” that has drained the resources of E360’s servers and done damage to E360’s databases. Refusing a mail delivery in a simple SMTP transaction hardly seems like the sort of thing we think of when we think of a DDOS, while E360 admits that the “damage to databases” was done by themselves when they removed addresses that they found to be undeliverable. In any case, this allegation rather turns 18 USC 1030 on its ear, since this law is far more likely to be used against the senders of unwanted e-mail rather than in their defense.
   • E360 claims that Comcast mail hosts “tarpitted” E360 servers by keeping them “on the hook” (waiting for a message transfer to conclude) for an average of five hours per message transfer; Comcast denies the tarpitting charge, but if it were true it would certainly provide evidence that E360’s mail sending hosts exhibit questionable efficiency.
   • E360 alleges that Comcast sent “false bounces” to E360 servers when these tried to transfer messages to Comcast MX hosts, and that these false bounces led E360 to remove the supposedly-unreachable Comcast e-mail addresses from its databases. Reading between the lines here, we might surmise that Comcast may have been “graylisting” the E360 hosts. If true, this would show that E360 mail-sending hosts may not correctly implement SMTP procedures (i.e., to retry mail transmissions after a fallback period if they are initially refused for technical reasons).
3. Comcast violated E360’s first amendment right of free speech through its “arbitrary and capricious” blocking of E360’s e-mails. This seems a silly argument even to a non-lawyer like myself, since Comcast is a private business that has no responsibility for enforcing or supporting anyone’s free-speech rights at its own expense (uncompensated by E360). Even E360 appears to recognize the weakness of this allegation, since they’ve only asked for $500,000 damages (out of the $21 million) on it.
4. Comcast is practicing unfair competition, since it treats E360 differently from other users of its network. E360 believes that because it has complied (so it is claimed) with Comcast’s AUP (as well as with the CAN SPAM law), it should be allowed to send mail on Comcast’s networks just as paying Comcast customers may do. Seems to me that being an outsider with no contractual relationship to Comcast puts E360 out of scope of the Comcast AUP, but then I’m no lawyer.

For its part, Comcast has replied to the charges with a dismissiveness bordering on contempt, and has asked the judge for an immediate dismissal of the suit, without trial. The next hearing in the matter is scheduled for April 15.

E360 Insight’s previous tussle at the bar was in E360 v. The Spamhaus Project (documents at SpamSuite.com), in which they took exception to Spamhaus’ naming of e360’s mail-sending hosts to its widely-used DNS blocking lists (E360 points out in the Comcast suit that Comcast uses Spamhaus DNSbls in its spam-filtering system). E360 can actually claim a technical victory here (“modified rapture,” to quote W.S. Gilbert), but only because the UK-based Spamhaus did not feel obliged to answer charges brought in a U.S. court, and so lost by default. On the appeal, which Spamhaus is more aggressively pursuing, E360 is finding the going a bit tougher.