http://www.upside.com/Upside_Counsel/39c64dec0_yahoo.html

> Blocking 'spammers' can cause legal troubles
> September 19, 2000 12:00 AM PT
> by Eric J. Sinrod
>
> Deciding how to regulate unsolicited commercial email (aka
> "spam") is a highly charged issue. Governmental regulation has
> not gone very far in this area, so technological measures have
> been devised. These measures, however, have resulted in
> controversy and litigation.
>
> Some states have enacted anti-spam laws that impose different
> requirements and penalties for violations. Some of these laws
> require that the letters "ADV" be written in an email's subject
> line to designate advertisements, that emails provide accurate
> return phone numbers and email addresses, and that recipients
> must be able to decline further emails from the sender.
>
> Questions have been raised about the ability of states to
> regulate email traffic that crosses state lines. Courts in
> Washington and California have struck down certain anti-spam laws
> as unconstitutional, based on concerns that states should not
> impose differing requirements on interstate commerce.
>
> Though many anti-spam bills have been introduced in Congress, the
> federal government has not yet passed any legislation to regulate
> unsolicited commercial email.  Without an overarching law
> controlling the situation, concerned individuals have pursued
> technological efforts to thwart spam.
>
> Technological black holes
>
> Mail Abuse Prevention Systems LLC, or MAPS, a nonprofit
> organization headquartered in Redwood City, Calif., attempts to
> put together blacklists that identify individuals or companies
> that send spam. Internet service providers subscribe to the
> blacklists (also known as "black holes") and are then able to
> block email sent by MAPS' alleged spammers.
>
> Needless to say, those individuals or companies whose emails MAPS
> has blocked have not been happy, and litigation has ensued.
>
> Several months ago, CMGI's (CMGI) Yesmail.com, a Chicago-based
> "permission marketer," filed suit against MAPS as a result of
> having been added to MAPS' Realtime Blackhole List (or RBL).
> Yesmail claimed that it sends email only to people who request
> email and that it was damaged by having been labeled a spammer.
>
> MAPS apparently took the position that Yesmail did not follow a
> "double opt-in" procedure supported by MAPS, meaning Yesmail does
> not obtain a second confirmation from an individual requesting
> email.

In other words, they let anyone sign up anyone else for their spam,
without confirmation.

> Two months ago, Yesmail won a temporary restraining order against
> MAPS. The federal court in Illinois barred MAPS from listing
> Yesmail as a company that sends bulk spam.

Boo!

> After this court ruling, MAPS agreed to remove Yesmail from the
> RBL, and Yesmail put its litigation on hold.  Soon after, the
> case was settled, presumably on terms favorable to Yesmail.
>
> Harris sues MAPS
>
> Shortly after the Yesmail litigation went to court, market
> research firm Harris Interactive filed suit in a federal court in
> Rochester, N.Y., against MAPS and a number of Internet companies.
> Harris alleged that MAPS unfairly blacklisted Harris as a spammer
> and that the Internet companies blocked Harris emails to
> approximately 2.7 million of the 6.6 million users who
> participate in Harris public opinion surveys. Harris sought
> injunctive relief and monetary damages.
>
> As in the Yesmail litigation, MAPS identified Harris as a spammer
> because it allegedly did not follow a double opt-in procedure.
> Harris also alleged that it wrongly was "nominated" to be on the
> black hole list by a competing market research firm.
>
> After filing suit, Harris dismissed AOL (AOL) as a defendant,
> because AOL agreed not to block email from Harris. Harris also
> settled with Microsoft (MSFT) when the software giant agreed that
> Harris' emails could reach Hotmail users.
>
> Meanwhile, the federal judge in the case refused to grant a
> temporary restraining order that would have forced MAPS to remove
> Harris from the RBL. The judge did not find immediate
> "irreparable" harm to Harris, but the denial of Harris' request
> for a temporary restraining order simply meant that the court did
> not want to rule on an emergency basis, and Harris still could
> pursue its usual rights in court.
>
> As the battle waged on, Juno Online Services (JWEB) and BellSouth
> (BLS) both stopped blocking Harris' emails and were dismissed
> from the lawsuit. Last week Harris put an end to the lawsuit
> entirely, apparently because it felt it had accomplished its
> goals.
>
> We haven't seen the end of email black hole litigation.  MAPS'
> influence is huge: 20,000 companies that control 40 percent of
> Internet email accounts subscribe to the RBL.

Wow.

> The solution?
>
> There is no silver bullet for the spam issue. State laws have
> helped, but they don't protect emails that cross state and
> national boundaries.
>
> Federal law has not yet stepped in. When it does, it is hoped
> that the government will add regulatory uniformity. But even such
> uniformity will not be able to control perfectly all
> circumstances relating to unsolicited commercial email.
>
> Finally, technology can be of value to block out some unwanted
> spam. But, as we have seen, branding a company a spammer can have
> serious legal consequences.

--
Gerald Oskoboiny <[email protected]>
http://impressive.net/people/gerald/