In a stunning victory (please note irony in use of the word “stunning”), a Federal court has slapped down the appeal of high volume email deployer White Buffalo Ventures, an online dating service also doing business as LongHornSingles.com. The reason for the dripping irony is because in fact the lawsuit said that the law was one way, when the law was actually already very clear that it was another. So this decision was actually a no-brainer, and the only thing stunning about it was the stupidity with which the plaintiff brought the lawsuit in the first place (and maybe the alacrity with which their attorneys presumably accepted their money to bring such a no-brainer case).
White Buffalo brought the initial lawsuit against the University of Texas when UT started rejecting White Buffalo’s email under the university’s anti-spam policies and practices.
A primary thrust of White Buffalo’s argument was that because their email complied with CAN-SPAM, UT was obligated to accept and deliver it.
Now, those involved in the drafting of CAN-SPAM knew that high volume email deployers would attempt to use that argument. That’s why they very carefully, and very bluntly (especially for a Federal law), included this language in CAN-SPAM:
“Nothing in this Act shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages.”
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Could it be much clearer than that?
In case it could be clearer, let me explain that what this says is that CAN-SPAM in no way, no how, requires an Internet service provider to accept and deliver any email, whether it complies with CAN-SPAM, is triple-confirmed-opt-in with a cherry on top, or is from the President of the United States himself. Or even someone really important like Angelina Jolie.
Now, all that said, the White Buffalo law suit did do two useful things for the defendent, and all email receivers out there (which things White Buffalo probably did not anticipate): 1) it established that organizations such as state universities, such as UT, fall within the definition of “provider of Internet access service” for these purposes, and 2) it also established that rejecting such email does not violate the 1st Amendment.
So, way to go, White Buffalo, thank you!
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