Government spam blocking not a violation of First Amendment right to petition

November 6, 2008 | by Evan Brown | Comments Off 

Ferrone v. Onorato, No. 07-4299, 2008 WL 4763257 (3rd Cir. October 31, 2008)

The Third Circuit Court of Appeals has held that a county government did not violate a citizen’s First Amendment right to petition the government for a redress of greivences when the county set its spam filters to block all email from the citizen’s domain. There was no evidence that such blocking was done with intent to deprive the citizen of his Constitutional rights, or with reckless disregard of those rights.

The founding fathers managed Spam

The Founding Fathers managed Spam

The Allegheny County, Pennsylvania office of economic devlopment was getting a lot of email from press@rock-port.com. A county official directed that his IT staff block all future messages sent from that address. Accidentally, however, the filter was set to block all messages from the @rock-port.com domain from being sent to any county account.

Plaintiff Ferrone, who was already in a dispute with the county, tried sending 14 email messages to various county officials over the course of five weeks. Because of the spam filter settings, the messages did not get through. So Ferrone sued, claiming a violation of the First Amendment right to petition the government for a redress of grievences. The county moved for summary judgment and the court granted the motion. Ferrone sought review with the Third Circuit. On appeal, the court affirmed.

The court held that the First Amendment’s prohibition on the “abridgement” of the right to petition the government requires a plaintiff to show an actual intent on the part of the government to diminish this right. The court refused to accept Ferrone’s argument that the act of blocking email messages alone, without an examination of the government’s intent, would rise to the level of a constitutional violation. Rejecting Ferrone’s attempts to “plump” up his “specious claim” by throwing in the First Amendment, the court held that no reasonable factfinder could have found a violation of Constitutional rights.

MySpace messages treated like e-mail under CAN-SPAM

August 15, 2007 | by Evan Brown (@internetcases) | Comments Off 

Over at Spamnotes,Venkat put up a post about a recent decision from a federal court in California that considered the defendant’s argument that MySpace “messages” do not fall under CAN-SPAM because “the addresses to which those messages are sent lack a ‘domain name’ and have no route, instead remaining within the MySpace.com.”

Venkat has described the case far beyond my poor power to add or detract, but here’s the skinny: the court looked to the plain language of the statute to can that argument. The definition of “‘electronic mail address’ entails nothing more specific than ‘a destination . . . to which an electronic mail message can be sent,’ and the references to ‘local part’ and ‘domain part’ and all other descriptors set off in the statute by commas represent only one possible way in which a ‘destination’ can be expressed.”

MySpace v. Wallace, No. 07-1929 (C.D. Cal. July 2, 2007)
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CAN-SPAM retrospective

May 22, 2007 | by Evan Brown (@internetcases) | Comments Off 

Venkat Balasubramani has written an interesting article on CNET, talking about recent litigation under the CAN-SPAM act. It’s an interesting read. To find out more about the law of electronic communications, be sure to read Venkat’s blog, Spam Notes.

Fourth Circuit issues important CAN-SPAM decision

November 22, 2006 | by Evan Brown (@internetcases) | Comments Off 

In the recent case of Omega World Travel, Inc. v. Mummagraphics, Inc., No. 05-2080, the U.S. Court of Appeals for the Fourth Circuit has ruled in favor of accused spammers, in a decision which, as Professor Goldman states, is likely to “take some wind out of the sails of anti-spam plaintiffs.”

Venkat Balasubramani has a very thorough analysis of the opinion. In a nutshell, the opinion held that Oklahoma’s anti-spam statute was preempted by CAN-SPAM, that certain errors in message headers were “immaterial” and thus not actionable as misleading spam, and that allegations of nominal damages could not support a claim of trespass to chattel.

Court: Send spam to Washington state and you can be sued there

December 22, 2005 | by Evan Brown (@internetcases) | Comments Off 

James Gordon is continuing his legal assault on spam [read about another Gordon case here], and has received a ruling in his favor from a federal court in the state of Washington. The court held that it had personal jurisdiction over an out-of-state company accused of sending spam to Gordon, a Washington resident.

The court found that Gordon presented sufficient facts to show that by knowingly sending commercial e-mails into Washington, advertising its products, the defendant was “doing business” in the state. This was a “purposeful act” done by the defendant, and thus it should have reasonably expected to be haled into a court in Washington for violation of its laws.

Gordon v. Ascentive, LLC, (Slip Op.), 2005 WL 3448025 (E.D. Washington, December 15, 2005).

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Spam filters and storage limits okay under First Amendment

July 25, 2005 | by Evan Brown (@internetcases) | Comments Off 

Plaintiff de Mino, a part-time faculty member at the University of Houston Downtown, filed suit against the University, claiming that various restrictions placed on the use of school e-mail accounts violated the First Amendment right to free speech.

Specifically, de Mino complained of the University’s practice of shutting down e-mail accounts for adjunct professors during the summer, when they were not under contract to teach. He further complained of the inability to transmit e-mail after his account had reached its data storage limit. De Mino had other problems with the e-mail system when he failed to designate his personal e-mail address as legitimate, thus certain messages he had sent to other faculty had been caught in the system’s spam filter. De Mino contended that he was denied access when he tried to communicate with other faculty regarding University policies.

The court granted summary judgment in favor of the University, and dismissed the lawsuit. In deciding on de Mino’s First Amendment claim, the court looked primarily to two tests used to analyze such claims in the education context.

Under the Perry test (Perry Educ. Assn v. Perry Local Educators’ Assn., 460 U.S. 37 (1983)), educational authorities may reserve an internal mail system for its intended purposes, so long as there is no discrimination on the basis of viewpoint and the limitations imposed are reasonable in light of the purpose of the forum. Under the Tinker test, (Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969)), teacher communications may be suppressed only when the expression or its method of exercise materially and substantially interferes with the activities or discipline of the school.

In this case, the court held that the restrictions on de Mino’s e-mail account satisfied these tests. The limited duration of adjunct accounts, as well as the spam filters and storage limits were not content- or viewpoint-based restrictions, and were reasonable in light of the need to preserve the integrity of the IT system. Doing away with such restrictions (and allowing open access to spam and unlimited data storage) would have been a substantial interference with the activities of the school.

Faculty Rights Coalition v. Shahrokhi, 2005 WL 1657116 (S.D.Tex., July 13, 2005).

Leaving a thin slice: CAN-SPAM does not completely preempt Washington state law

July 14, 2005 | by Evan Brown (@internetcases) | Comments Off 

Plaintiff Gordon sued defendant Impulse Marketing, an apparent source of unwanted email. Gordon brought the lawsuit in federal court, but alleged violations of the state of Washington’s Commercial Electronic Mail Statute, RCW §19.190 et seq. and Washington’s Consumer Protection Act, RCW §19.86 et seq.

Impulse moved to dismiss, arguing that the federal CAN-SPAM Act, 15 U.S.C. §7701 et seq., preempted the state statutes under which Gordon had brought the suit. The court rejected Impulse’s argument and denied the motion.

By its own terms, the CAN-SPAM Act “supersedes” any state law that “expressly regulates the use of email to send commercial messages.” 15 U.S.C. §7707(b)(1). That same provision, however, states that the Act does not supersede state laws to the extent that those laws “prohibit falsity or deception” in an email message or its attachments.

The court looked at the prohibitions of the Washington statutes and concluded that the plain language of the CAN-SPAM Act did not support Impulse’s preemption argument. The state Commercial Electronic Mail Statute prohibits “misrepresentation” and the use of “false or misleading information” in the course of sending email messages. The state Consumer Protection Act makes it illegal to send an email message with “false or misleading information in the subject line.” Accordingly, the CAN-SPAM Act did not preempt these provisions, as they serve to prohibit “falsity or deception.”

Gordon v. Impulse Marketing Group, Inc., 2005 WL 1619847 (E.D. Wash., July 11, 2005).

No spam with those potatoes: Idaho federal court tosses CAN-SPAM complaint

June 4, 2005 | by Evan Brown (@internetcases) | Comments Off 

Falsity in body of message not a violation of Act.

Internet Access Services Providers LLC filed suit in the U.S. District Court of Idaho against Real Networks under various provisions of the CAN-SPAM Act, 15 U.S.C. §7701 et seq. Real Networks moved to dismiss, and the court granted its motion. The court noted that pursuant to 15 U.S.C. §7704(a)(1), a commercial e-mail message must not contain materially false or misleading “header information.” Because the only falsity that the plaintiff alleged concerned a statement contained in the body of the email, the Act did not apply.

In denying the defendant’s award of legal fees and costs, the court declined to exercise its discretion to do so, given the relatively new and uncertain scope of the CAN-SPAM Act.

Internet Access Services Providers LLC v. Real Networks, Inc., 2005 WL 1244961 (D. Idaho, May 25, 2005).