Published Thursday, October 12, 2000, in the San Jose Mercury News Spam battle goes to court

Company on blacklist says it was defamed

BY HOWARD MINTZ, Mercury News

Even as politicians tinker with legislation that might limit junk e-mail on the Internet, the courts are being thrust into an intensifying legal debate over how far the private sector can go to restrain cyberspace's unwanted missives, known as ``spam.''

The issue has come to a head in a lawsuit unfolding in Santa Clara County Superior Court, where a Redwood City-based anti-spam organization is locked in a legal tussle with a New Hampshire company that claims it has been defamed and economically damaged by being identified as a spammer.

In a case with a host of free speech and e-commerce-related legal implications, a San Jose judge today is scheduled to consider arguments in a lawsuit involving the conduct of Mail Abuse Prevention System, or MAPS, a widely used Peninsula company set up to help companies screen junk e-mail.

Under attack from companies that have wound up on its so-called ``Blackhole List'' of junk e-mailers, MAPS filed suit this spring seeking a definitive ruling from a California court that its practices do not violate any laws. The target of the suit was Black Ice Software, a New Hampshire maker of software tool kits that had threatened legal action over being placed on the Blackhole List.

Black Ice responded by counter-suing MAPS, accusing it of defamation and unfair business practices. Superior Court Judge Socrates Manoukian must now decide how the legal dispute proceeds. Saying the case raises new legal issues for California, lawyers for MAPS liken the organization to Consumer Reports, saying it simply renders an opinion on whether a particular company is generating unwanted spam and ignoring pleas from computer users to stop sending e-mails.

Internet service providers such as Hotmail subscribe to MAPS, and can use it to block e-mail from Web sites on the Blackhole List. MAPS stresses that service providers actually make the decision whether [to block e-mails, and that it is simply in the business of providing information. ``We're no different than a restaurant reviewer at the Mercury News saying `Don't go to this restaurant,' '' said Anne Mitchell, legal director for MAPS. ``People are free to go there or not. It's just opinion protected by the First Amendment.''

Companies like Black Ice disagree. Lawyers for Black Ice could not be reached for comment Wednesday, but in court papers they have depicted MAPS as recklessly disseminating false information. Critics of the Redwood City company maintain it has accumulated too much control over what Internet messages reach their destinations.

``The wrongful listing of Black Ice on the MAPS (list) and the labeling of Black Ice as a `spammer' by MAPS resulted in a substantial loss of Black Ice's Internet and e-mail services and damaged Black Ice's business and business reputation,'' the company wrote in court papers filed last month. Legal experts say one of the key issues for the courts to address will be the vague definition of a spammer, and how MAPS renders its ``opinion'' that a company is sending spam. ``It depends on how that opinion is phrased,'' said Palo Alto attorney Mark Radcliffe, a cyber-law expert. ``If they are using a definition of spamming that is overly broad, I think they may have a problem.'' Black Ice is not the first company to challenge MAPS in court. Earlier this year, two other companies sued MAPS on the East Coast, including Harris Interactive, a giant e-mail company affiliated with the Harris polling service. MAPS has set up a legal defense fund to fight off challenges to its anti-spam efforts. The legal battles over MAPS come at a time of heightened concern over how to deal with unsolicited e-mail on the Internet without going too far. The House of Representatives this summer passed legislation that would make it easier for Internet service providers and consumers to keep spam messages off their networks, but the Senate has not yet voted on the measure.
Contact Howard Mintz at hmintz@sjmercury.com or (408) 286-0236.