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In today’s society individuals are increasingly turning to the courts and the justice system to remedy every wrong. Lawsuits are brought for any and every reason. You always hear the stories like the woman who sued a fast food restaurant for causing weight gain or McDonalds for burning them with extremely “Hot Coffee.”

In the present case, plaintiff sued Comcast, Microsoft, and other Internet service providers for improperly blocking his outgoing spam mail. When plaintiff first brought the lawsuit under various state law claims and federal statutory claims, the court dismissed all the claims for failure to state a claim upon which relief may be granted (12(b)(6) motion). Plaintiff then filed a second amended complaint, and again the defendants moved to dismiss the claims. The court converted the motion into a motion for summary judgment and granted the motion on defendants’ behalf.

All the defendants, Comcast, Microsoft, and Cisco, argued that they were immune to liability under the Communications Decency Act (CDA). Under the CDA, the user or provider of an interactive computer service (or access service provider), who provides information-content providers with the technical means to restrict access to material that the user or provider considers to be (a) obscene, (b) lewd, (c) lascivious, (d) filthy, (e) excessively violent, (f) harassing,

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or (g) otherwise objectionable, is entitled to immunity.

The Court found that Cisco is entitled to immunity because it is both the user and a provider an interactive computer service that provides Comcast with the technical means to restrict access to unwanted spam. In regards to Microsoft, the court found that Microsoft’s EHS service is software that “filters, screens, and disallows” content and thus constitutes an access service provider, as defined by the CDA. Thus, because Microsoft’s EHS service provides Comcast with a means to restrict access to harassing spam email, Microsoft is immune to liability under the CDA as a matter of law. Lastly, the Court found that a reasonable jury could conclude that Comcast acted in bad faith when it failed to respond to Plaintiff’s repeated requests for an explanation why it continually blocked Plaintiff’s outgoing email. For that reason, Comcast was not entitled to immunity under the CDA.

Plaintiff also filed a claim under the Wiretap Act. The statute provides that “except as otherwise specifically provided in this chapter any person who — (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; . . . shall be subject to suit as provided in subsection (5).” 18 U.S.C. § 2511(1)(a). The Court found that there is no evidence that Cisco actually intercepted and monitored Plaintiff’s email communications in order to generate the reputation score it gave Plaintiff’s IP address, and thus Cisco is entitled to summary judgment on Plaintiff’s Wiretap Act claim. Microsoft, on the other hand, had in its Subscription agreement consent to filter Plaintiff’s email and there is no evidence that Microsoft blocked Plaintiff’s email for any criminal or tortious purpose. Thus, Microsoft was entitled to summary judgment.

On the breach of contract claim, Plaintiff needed to prove that Comcast failed to satisfy at least one term of the agreement. The Court reviewed Comcast’s Acceptable Use Policy and Customer Privacy Policy and finds that Comcast had the contractual authority to block Plaintiff’s outgoing email or terminate his service. Thus, there was no breach of contract. In addition, Comcast was granted summary judgment on this claim because plaintiff failed to offer evidence that Comcast refused to provide him with personally identifiable information or that Comcast unlawfully monitored and blocked his email transmissions. In essence, Comcast did not make any promises that it failed to keep.

The defendants were also granted summary judgment on Plaintiff’s NJ Consumer Fraud Act claim (because he could not show fraud or an ascertainable loss), the Cable Communications Policy Act claim, and the Ocean City Franchise Ordinance claim.

The fact that Plaintiff lost these claims a second time without being tried on the merits signifies the weakness of Plaintiff’s claim. It seems that Plaintiff was agitated at having his email marked as spam and blocked. Thus, he decided to take the defendants to court without strengthening his claims against them. Although the defendants probably appreciated the dismissal (a second time), it probably would have been a better use of time and resources if the court had reached the result the first time around. The lesson is pretty clear: if an email service provider blocks your outgoing email, the courts aren’t going to help you out.

MH, a Seton Hall University School of Law student, Class of 2012, focuses her studies in the area of Health Law. She has worked in various fields of health law including interning at Community Health Law Project, a nonprofit organization as well as working at the legal department of UMDNJ, a medical research university. MH received her B.A. in Psychology and Criminal Justice from Rutgers University. After graduation, she will clerk for a civil court judge in the Superior Court of New Jersey.

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