The United States District Court for the Northern District of California today granted Scott Richter and his company, OptInRealBig, a restraining order against SpamCop and their parent company, Ironport Systems.
Richter sued SpamCop less than two weeks ago, claiming that the anti-spam service was hurting his business and interfering with his contracts by causing his company’s email to not be delivered, inducing his ISP to deny him Internet service, and – you’ll love this one – causing Richter to violate CAN-SPAM because SpamCop will not reveal the identity of those who complained to them about Richter’s email, thereby keeping Richter from unsubscribing the complainers (Ed. note: CAN-SPAM requires that mailers honour a subscriber’s opt-out request, not that they remove a subscriber based on a complaint to a third-party).
Now, it’s important to bear in mind that the entire purpose of a TRO (Temporary Restraining Order) is to ensure the status quo as the Court believes it to be – or as it was before the offending action started to take place. In short, the granting of a TRO is in no way indicative of how the case will turn out, in which direction the Court is leaning, or even what the Court thinks today. In most cases where a TRO is granted, the Court has not even had time to do an in-depth analysis, only skimming the pleadings and getting enough of a sense of what is going on to issue temporary orders until things can be further sorted out.
That said, the substance of the TRO is this:
SpamCop is prohibited from:
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“A. transmitting or sending Complaints it forwards to third parties regarding Plaintiff (and its subsidiaries, divisions, companies, etc.) to ISPs other than Plaintiff?s originating ISP;
B. removing the e-mail addresses from Complaints it receives regarding Plaintiff and its subsidiaries, divisions, companies, etc.”
Now, with respect to the first, there are two things which can be at issue here: one is the actual forwading of complaints to ISPs, and the other is the SpamCop DNS blocklist. Limiting the forwarding of complaints only to Richter’s ISP is one thing. But what about the listing of Richter’s IP addresses in the DNS blocklist? One can argue that DNS-based blocklists such as SpamCop’s don’t transmit or send anything – the ISPs poll them, and that is different. Further, if SpamCop is not going to be sending the complaints on, then they hardly have any reason to remove the email addresses from said complaints.
More troubling is what this means for the individuals who submit complaints to SpamCop with the expectation that SpamCop will not reveal their email addresses to the people they are accusing of spamming. This is, after all, a private enterprise, not a branch of the government, and certainly not a court of law, and there is no right to confront your accuser in this arena.
As of 10:45 p.m. PST following the granting of the TRO, neither SpamCop nor parent company IronPort Systems appears to have posted any advisory to their users to put them on notice that complaints of spam from Richter or OptInRealBig will not be anonymized.
In any event, watch this space, as the next hearing is in just ten short days, on May 20th, at which time the Court intends to determine whether an injunction should be issued against SpamCop.
You can be sure that we’ll be WatchingRealBig.
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http://www.ironport.com/pdf/ironport_2004-05-12.pdf