The 9th Circuit issued its opinion in Zango, Inc. v. Kaspersky Lab, Inc., affirming the district court's decision that Kaspersky's filtering decisions were protected under Section 230.  (Access a copy of the order here [pdf].)  I've blogged a bunch (see, e.g., here) about this case so it was fun to read the decision.
 
This case involved filtering decisions by Kaspersky, who makes security software, sort of like McAfee and Norton.  Kaspersky's product interfered with the operation and download of Zango software (and Zango's toolbar).  Zango sued in Washington state court alleging trade libel and tortious interference (etc.).  Kaspersky removed.  Zango sought an injunction in federal court and was denied.  Ultimately, the trial court (Judge Coughenour) granted Kaspersky summary judgment, finding that Kaskpersky's decision was immunized by Section 230's "good samaritan" blocking and screening procedure.  Zango appealed to the 9th Circuit.  The 9th Circuit sided with Kaspersky and found that its decisions were entitled to protection under Section 230 (this is a different part of Section 230 than is typically at issue).  (There were amicus briefs on both sides, which are worth checking out:  on Zango's side and on Kaspersky's side (CDT/EFF).

The opinion is an easy read.  The result not surprising.  The decision significant because there's not a ton of cases dealing with this part of Section 230.  The internet security community is probably excited, as is anyone that makes filtering/security software.  The concurrence by Judge Fisher was interesting and I think equally significant.  He felt that the "otherwise objectionable" language in this part of Section 230 gave companies like Kaspersky too much discretion in filtering content.  Actually, he's probably not as concerned about Kaspersky.  Given the expansive definition and interpretation of "interactive computer service" his concern is probably that other companies (ISPs, etc.) may use this provision to engage in anti-competitive or other problematic behavior.  (That's the sense I got from a quick read through it at least.)

Brier Dudley at the Seattle Times has a piece on the decision here.  I'm sure Professor Goldman will have something to say about this one.

[postscript: news reports indicated that Zango essentially shut down (see its Wikipedia entry).]

Added:  I took a closer look and the court definitely grapples with the language of (c)(2).  The statute protects "interactive computer services," which is defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server . . . ."  The italicized language presented somewhat of an issue for Kaspersky.  The only server access provided by Kaspersky was when the software called home to check in and obtain updates.  It's tough to fit this into the definition, since in today's day and age, a ton of programs have auto-update features.  Zango raised this argument.  The court rejected it, noting that "non-filtering programs such as word processors or video games would not be subject to good samaritan immunity," because they do not restrict access to objectionable material.  I guess this brings us back to the second interesting issue which Judge Fisher raised in concurrence: objectionable material in whose opinion? 

Like many others, I find Section 230 pretty clunky, but I think broad immunity and applicability is mostly a good thing. 

Other reactions and links: Professor Goldman (the court "appeared to struggle with some of [the statute's] frayed edges"); Threat Level; BNA's E-Commerce and Tech Law.

One of the cases that spawned a lot of commentary on use of Twitter and Facebook by Jurors was the Fumo case in Philadelphia.  (See, e.g., here and here.)  Fumo was a state senator on trial for corruption.  During deliberations, one of the jurors tweeted and Facebooked.  Media attention ensued.  Fumo (and co-defendant) requested a new trial based among other things on the tweets, Facebook status messages, and blog postings of one of the jurors.  How did Fumo fare in his request? 

As some predicted (post by Max Kennerly predicting that this probably does not warrant a re-trial), Fumo lost. The order from Judge Buckwalter contains some interesting bits - as always, it's fun to see courts commenting on things like Twitter and Facebook.  (The Lexis cite for the case is: 2009 U.S. Dist. Lexis 51581.)

Twitter:  "This is it . . . no looking back now!" was the Tweet in question.  According to the court, the juror "did not use [the functionality which allowed users to respond to twitter postings] . . . instead, he used it as a brief, stream-of-consciousness diary of his thoughts." 

[Don't we all use it as a brief, stream-of-consciousness diary?]

Facebook:  The juror had a slew of Facebook "status updates" - none of which talked about the substance of the case.  He mostly talked about where they were at with deliberations, and did in the final status update say "Stay tuned for the big announcement on Monday everyone."  The order notes in passing that the juror belonged to "the Philadelphia network" which had 600,000 members (he wasn't friends with them by virtue of being a part of the network). 

The fun stuff - the juror's explanation regarding the purpose of the Facebook status updates:

its more for my benefit to just get it out of my head, similar to a blog posting or somebody journaling or something.  It's just to get it out there.  And that's what a lot of Facebook . . . it's just to get . . . a way to electronically get thoughts off your mind.

[I like that - a way to electronically get thoughts off your mind.  Isn't that what things like meditation are for?] 

The juror testified that he didn't receive any "non-friend" responses to his status updates, but engaged in some non-substantive banter with friends.  In response to a query from defense counsel as to whether his Facebook friends knew what he was talking about, the juror testified that "that's almost a little bit of the appeal of Facebook."  While others used it "for connection between other people" the juror in this case used it as a way to "journal" his thoughts.  Just the "random" thoughts. 

The Blog:  The juror also testified somewhat entertainingly about blogs:

Defense counsel:  do you have a comment feature on your blog?

Juror:  Comments are activated, yes.  But I think the only comments I ever usually got were from my wife or from my kids.  But it's not an active blog by any means.  It doesn't have a daily posting.  It's lucky if it has a seasonal posting because I've gotten away from that . . . with the advent of Facebook where you could get . . . more updates from friends and everything.  My own blog was more of just something to have to say I could have it years ago when that was the thing to do.  And then MySpace came out and Facebook came out.  Everybody's moved to those types of formats for blogging, so to speak.

[Facebook: take note!]

***

The opinion on the whole is worth a read (although it's somewhat long).  The testimony on the juror's use of Twitter and Facebook (and how he viewed them and interacted with "friends" on Facebook) is almost more interesting than the legal issues.  Ultimately, the court concludes there was no undue influence and the juror's non-substantive updates of the status of deliberations did not prejudice the trial.  I would guess there will be an appeal in this case.  I don't know enough to say where the Twitter/Facebook aspect of the case will make much of a difference (I'll leave that one to the experts), but the district court's treatment of the issue definitely seemed reasonable.

Footnote 30 was funny:  "A friend responded 'of what?,' to which [the juror] replied:  'Can't say till tomorrow! LOL [Laugh out loud].'"  

Big news from the 9th Circuit today: Satterfield v. Simon & Schuster - reversed [pdf].

The 9th Circuit reversed the district court's dismissal of claims (based on transmissions of unsolicited text messages) brought by Laci Satterfield against Simon & Schuster and others alleging violations of the Telephone Consumer Protection Act.  Satterfield's daughter signed up to receive a ringtone, and then started receiving unsolicited commercial text messages.  In this case, she received a text message marketing one of Stephen King's new novels.  She sued Simon & Schuster and others, alleging violations of the Telephone Consumer Protection Act.  (Previous posts here and here (oral argument recap predicting reversal).)

In a nutshell the court held that there were factual issues across the board, as to: (1) whether the equipment at issue fell under the TCPA's definition of an "automatic telephone dialing system"; and (2) whether Satterfield consented to receive unsolicited text messages by agreeing to the terms of service.  The court also held that text messages were "calls" under the Telephone Consumer Protection Act.

A significant decision in many respects. 

First, the fact that the TCPA covers text messages is something that significantly broadens the applicability and reach of the TCPA, given the increased prevalence of marketing through text messages.  This sort of breathes new life into a statute that has otherwise been used to police unsolicited faxes, robo-calls, and annoying dinner-time telemarketing calls.  (Maybe comercial Facebook friend messages are even covered now?)  The statute was silent on the issue (having been enacted before text messages were around) and the court agreed that the FCC's interpretation of the statute as including text messages was reasonable.  One state court in Arizona previously addressed this issue and the Ninth Circuit's ruling here is in agreement with that case.  (See also Technology & Marketing Law post here (discussing Joffe v. Acacia Mortgage).)

Second, resolution of the consent issue in Satterfield's favor demonstrates that courts will not be so friendly to marketers when it comes to consent, particularly where as here, the consent is secured by terms that are displayed on a telephone.  Marketers try to get crafty in securing broad consent (e.g., allowing the marketer to market on behalf of "affiliates") but this case demonstrates that you should think twice before doing that.  Consent secured in the mobile context will always be dicey.  [Correction:  the consent appears to have been secured via a website and not a mobile device, but the court's discussion of the various transactions involved (including aggregators) influenced the outcome.  I would imagine courts will be even stricter when it comes to consent secured via a mobile device.]

Finally, the case also illustrates that brands have to keep tabs on the marketing methods used by their marketers.  Simon & Schuster didn't directly engage in the marketing at issue here, but it could well be on the hook (among other things, they argued they were an affiliate of the marketer's in order to take advantage of the consent secured by the marketer . . . . plaintiff will likely use this to argue that they should be liable for the marketer's activities).

Other reactions:

Proskauer's New Media & Technology Blog: "Ninth Circuit Executes Dictionary Attack on Telephone Consumer Protection Act" [nice title]

The Complex Litigator:  "In Satterfield v. Simon & Schuster, Inc., Ninth Circuit defers to FCC and construes text messages as "calls under TCPA"

Davis Wright's Privacy and Security Law Blog: "Has the 9th Circuit Raised the Bar for Text-Message Affiliate Marketing" (This post makes the point that much of the commentary focused on the applicability of the TCPA to text messages, (something which was a given, following the FCC pronouncement), and the important part of the decision is the consent issue, not the applicability of the TCPA.  This is a fair point, and I'm somewhat guilty of this myself.  Still, as the sole federal appeals decision on this issue, given the absence of other case law or statutory language, the decision is important in putting its stamp of approval on the FCC rule.)

I've been putting some energy into cleaning up my in-box over the past six months, and have finally made some serious progress.  (And no, I don't use Gmail.  Judging from what others say, it sounds seriously unreliable.)  I've read a slew of posts and articles on this topic - I'm guessing we've all seen a few articles on this (e.g., "Managing Your Mailbox Tutorial"; "4 Ways to Take Control of Your E-mail Inbox"; "Inbox Zero: Action Based Email").  I didn't find any of these articles particularly helpful.  What I found most valuable wasn't a sorting system, or rules, or buckets, or anything like that.  In fact, for me the key wasn't to focus on my in-box at all.  I achieved a manageable in-box through implementing a simple rule for sent items: 

don't save sent items as a default, and every time you send an email, double check to see whether it's important enough to save, and if so, route it to the appropriate folder before sending it.

This sounds irrelevant to organizing your in-box, but I found that it got me to in-box zero more effectively than any of the systems I came across.  After implementing this rule, I typically operate with approximately 25-35 emails in my in-box and zero in my sent folder.  The stuff in my in-box is stuff from the last 30 days and every so often I'll go through and archive stuff that's more than 30 days old.  Implementing this simple rule highlighted the fact that I save way too many emails.  Part of that is a function of the fact that I'm a lawyer and I'm fairly conservative about keeping records.  But when I thought about it, I realized that I really didn't need to save many of the menial emails I send out, like the ones that say "coffee at 4 sounds good," or "thanks for taking care of this".  For some odd reason, with my sent items always at zero my in-box became much easier to tackle.  There's no rational explanation for it, but it is what it is.  It works!

Everyone's different, and there's obviously no one size fits all approach, but this works for me. 

One of the more monetizable parts of Twitter is in my opinion its user data.  Think of the possibilities.  If you are dealing with someone you have not met and he or she uses Twitter, it may be valuable to obtain a profile of this person.  (Sounds creepy and too Art of War-ish, but I'm betting people would go for it.)  How about Starbucks ordering up customer profiles for everyone in a certain area who drinks vanilla lattes?  Some of this can be pretty easily accomplished using Twitter search.  However, Twitter's search seems choppy in practice (e.g., some people don't show up and searches only go back so far).
 
Along these lines, there were a couple of stories this week about Twitter psych analysis tools (TweetPsych) offered by third parties.  (ReadWriteWeb; Dan Zarella)  Using TweetPsych you can enter anyone's Twitter ID and obtain a rough profile that breaks down the type of cognitive and emotional content expressed by the person in Tweets.  Always interesting to think about the privacy implications of this. 

My first thought is that people reveal far more than they think they do through Twitter and other social media.  People always tend to limit the information they disclose on a per-Tweet basis, but if you put a person's entire Twitter feed together you are likely to get a bigger picture containing details about the person which the person probably didn't think they revealed through Twitter.  Of course you can also link a person's Twitter, Facebook, and other accounts and get even more personal.  That could be where this is ultimately headed.

Out of curiosity, I looked to see what Twitter's privacy policy says about all of this?  Nada.  Twitter's privacy policy doesn't clearly distinguish between the information you provide upon registration or in your profile and the information you transmit via the service.  The policy says it exists to provide users of Twitter's information regarding Twitter's "collection, use and disclosure of":

personally identifiable information received from users of [the Twitter website] or collected through [its] social networking service.

I think this refers to the information you submit when you sign up, or in your profile and to information "collected" by Twitter, but I'm not sure.  As for disclosure, the policy states that it engages "certain trusted third parties" to perform various functions, including "hosting and maintenance, customer relationship, database storage and management, and direct marketing campaigns."  Twitter will share a user's "personally identifiable information" with these third parties, but only to the extent necessary for the third parties to perform these functions, and in circumstances under which the third parties are required to maintain "the privacy and security of [the user's] data."  The policy arguably doesn't apply to information transmitted by an end user through the service, but even if it did, the policy contains a pretty broad range of disclosure to third parties. 

Given how courts have treated privacy policies as not creating enforceable obligations and have rejected claims for damages based on violations of privacy policies (see, e.g., Cherny v. Emigrant Bank; Pinero v. Jackson Hewitt Tax Services Inc.), analysis of Twitter's privacy policy is largely academic.  But it's interesting to note what the policy does or doesn't say about turning over a user's Twitter feed en masse to a third party for purposes of analysis. 

Previous post:  "Twitter + Facebook Combination: Privacy Issues"

[Correction:  as someone points out via email, analysis of the privacy policy is obviously not academic . . . the big bad FTC could come cracking down on you.  It's just that an end user cause of action isn't terribly viable.  Also, I'm speaking strictly from the standpoint of U.S. law.  EU rules are much more protective, and it's anyone's guess as to how things look through the lens of the EU rules.  See, e.g., All Facebook: "Will Facebook Face Tougher Privacy Restrictions in Europe?"]  

Judge Miller (S.D. Ca.) issued an order a couple of weeks ago largely gutting the class action lawsuit filed against Jamster and several other entities (including wireless service providers) relating to allegedly improper marketing practices and charges around mobile content (free ringtones):  In re Jamster Marketing Litigation (2009 U.S. Dist. Lexis 43592).  (I guess a more accurate way of characterising the result is that the court's order lets the wireless providers off the hook.)

Background:  as described by the court, the complaint alleged that minor children of plaintiffs were exposed to television advertisements which advertised "free ringtones" in response to text messages.  The advertisements were promoted by Jamster and Verisign. 

A typical transaction involved the minor viewing an advertisement containing pictures of cell phones with flashing lights, rap music, voices, and sparkling effects.  The advertisement provided a number in large print that shined and sparkled for consumers to text message in order to receive a ring tone.

Plaintiffs alleged they were charged for the text messages and for other products and services that they "did not order or agree to have included in [their] account."  They contacted wireless providers (AT&T) and were allegedly advised that AT&T "did not know how to stop the charges." 

Discussion:  at the end of the day, the court leaves a small sliver of the claims against the wireless providers standing, and rules that the service providers cannot be held liable for the misleading advertising of third parties, including the content providers.

The Rico Claim:  plaintiffs brought a RICO claim, which is generally premised on an agreement to further an unlawful act or enterprise.  Since plaintiffs alleged fraud or misleading conduct they were required to plead "with particularity" the instances of fraud.  According to the court, plaintiffs could not specify any such enterprise:  "Pleading by adjective does not comply with Rule 9(b)."  Plaintiffs pointed to other cases where partners had back and forth communications regarding the type of marketing which would be used, but the court was not persuaded.  I guess there was no "smoking gun" memo? 

Billing Presentation Claims:  AT&T argued that the dispute had to be resolved through the regulatory mechanism set forth by the California Public Utilities Code.  The court rejects this argument, noting that the Public Utilities Code does not preempt claims under California's unfair competition statute.

AT&T's Liability for Misleading Content Provider Advertisements:  AT&T argued that absent evidence that it actually participated in the marketing efforts of the content providers, it could not be held liable for any deceptive marketing practices.  The court agreed, noting that the complaint failed to state allegations that the providers "participated or exercised unbridled control over [the] alleged false advertising [of the content providers]."  This fact undermined plaintiffs claims for misleading billing statements, violations of 17200, and the California Consumer Legal Remedies Act.  (This is the significant part of this ruling.)

Strike Class Allegations/Arbitration:  the one light at the end of plaintiffs' dark tunnel is that the court rejects AT&T's request to strike the class allegations and to compel arbitration.  Actually, the court defers ruling on this issue, hinting that it agrees with AT&T that there are "substantial hurdles confronting Plaintiffs in maintaining a nationwide class action under Rule 23."

****

This is a tough one for plaintiffs.  I wondered whether plaintiffs could argue disgorgement as a remedy?  I thought 17200 provided for disgorgement or other equitable remedies - maybe personal involvement in the allegedly improper conduct is still a requirement?

How about statistics of chargebacks?  Do the wireless service providers have any sort of duty to keep track of high rates of chargebacks on certain content or services provided by third parties?

Finally, I'm surprised the court found that the wireless providers did not have the ability to control the marketing practices of the content providers.  I would assume such a provision would be in the wireless provider-content provider agreement.  The wireless provider is in the chain of distribution, and you would think they want to approve of the marketing practices of the content or services sold by third parties via their platform? 

Note:  this isn't the first piece of class action litigation centered around marketing mobile content to minors.  (See Satterfield v. Simon & Schuster, currently on appeal to the Ninth Circuit.)

(from Davis Wright Tremaine) is "baaaaaaack," along with a short explanation of where they've been. 

I like the informal tone, and love the fact that they are abandoning the "annoying third-person, royal we, voice." 

Also:  "Reasonable Basis," a blog covering advertising and marketing law is posting again.

The Eighth Circuit revisited a case which revolves around whether the attorney in a case received notice of an order via the court's electronic filing (ECF) system.  (American Boat Company, Inc. v. United States, 2009 U.S. App. LEXIS 11961 (June 4, 2009).)

The basic facts were that plaintiff lost a motion for reconsideration.  Plaintiff wished to appeal, but failed to file the notice of appeal within 30 days of the reconsideration order.  Four months later, plaintiff filed a motion to reopen the time to file an appeal (which typically runs 30 days).  The district court denied the motion, and the Eight Circuit initially reversed and remanded, finding that an evidentiary hearing was appropriate on the issue of whether plaintiff actually received notice of the original reconsideration order (which would start the clock).  Following the appeal the district court held an evidentiary hearing and again denied plaintiff's request.  (Previous post on this case, covering the district court ruling: here.) The second appeal to the Eighth Circuit (which resulted in this ruling) followed. The Eighth Circuit affirmed the district court's denial of plaintiff's request: plaintiff is out of luck and cannot pursue the appeal.

This case is not particularly earthshattering except it shows the importance of making sure you receive all emails from the courts (particularly the federal courts which use ECF and tend to not send out any paper notices).  In other words, make sure your email works and doesn't block or lose emails from courts.  Here, there was testimony that one of the lawyers in the case "did not have his own computer" and his assistant "was responsible for checking [his email account."  Yikes.  I imagine there are still lawyers out there who don't use computers, but it's getting to the point where so much important activity occurs via email that it must take a giant leap of faith to not check your own email. 

The Eighth Circuit ends up affirming the district court's conclusion.  There's a presumption of receipt (as with the mails) that applies to emails sent by the court's cm/ecf system and the plaintiff failed to provide sufficient evidence to overcome this.

Note:  this is a great case to read to get a clue into how arguments around non-receipt of emails pan out, and what sort of evidence you should put forth (and what your expert should end up saying) if you are on either side of this argument.  I imagine this must come up often in contract or other cases where notice becomes an issue.  While there is a presumption of receipt that applies to a properly addressed email (Kennell v. Gates, 215 F.3d 825, 829 (8th Cir. 2000)) this can be overcome. 

It was bound to happen of course - someone sued Twitter for not verifying a "celebrity" or brand account.  (h/t Lance Godard) Mashable reports on a lawsuit brought by Tony La Russa, who (?) is apparently a manager for the St. Louis Cardinals baseball team. (Maybe he's famous in baseball circles or something - I'm not a big sports fan so I'm out of the loop on this one.) 

[Update:  Mashable reports that La Russa and Twitter have resolved this one.  Lesson for Twitter?  Respond to squatting complaints, and get yourself a standardized complaint procedure!]

The complaint [link] contains causes of action for: (1) trademark infringement/false designation of origin, (2) cybersquatting/ACPA violations, and (3) emotional/privacy torts.  Mr. La Russa's lawsuit is pretty weak for several reasons.  These reasons aside, practically speaking, Mr. La Russa comes off looking fairly thin-skinned.  Did he ever just ask Twitter - like the scores of other people who have had their Twitter accounts "jacked" - to remove the account or transfer it to him?  (I've done this several times on behalf of clients, and Twitter has been responsive every time.)

And then there's the fact - as pointed out by Mashable - that the obviously fake Mr. La Russa profile only has 4 followers.

So, quick/off-the-cuff thoughts on the claims.

Intermediary Liability is Tough:  Twitter allows you to register accounts and transmit content and links.  It's a classic intermediary.  Section 230 aside (which has exceptions, including trademark and state IP-based claims) it's never ever easy to hold an intermediary liable.  That's true in a trademark case as in any other case.  (See, e.g., Tiffany v. eBay.) 

La Russa's Trademark Claims Are Weak:  Surnames (names of people) typically are not entitled to trademark protection.  The Complaint does not allege a registration, and it's unlikely La Russa would be able to obtain a registration for his name.  A quick search of the PTO database shows one mark for "Tony La Russa Baseball" and the mark (now dead) was filed by Stormfront Studios.  La Russa provided his consent apparently to this filing.  It doesn't look like the fake Mr. La Russa was selling any products or services, so there's no typical consumer confusion-based claim.  I doubt Mr. La Russa can make a colorable dilution claim.

Does the ACPA Apply to Twitter Accounts? La Russa's cybersquatting claims are based in part on a federal statute, commonly known as the ACPA.  It prohibits cybersquatting, and has a provision that protects individuals whose names have been incorporated into domain names, but the "personal name" protection is fairly limited (it's a bit tougher to prove bad faith).  The bigger question is whether the ACPA applies at all to things like Twitter accounts.  I haven't seen this issue come up, but logically the answer has to be no - it does not apply.  Among other things, the structure of the ACPA itself and its references to registrars, in rem actions, etc. point to the fact that Congress only intended the ACPA to apply to domain names.  (Again, the ACPA may have a definition, or an easy answer to this one, I've just never seen this come up.)

La Russa's Personality Rights Claims: I'm thinking La Russa's other claims may not be preempted by Section 230 (see Prof. Goldman post) but suffer from the same general problems above.  (Some of the claims may be preempted.)  Also, the account obviously stated that it was a parody account, so La Russa doesn't look reasonable arguing that people were really fooled.  The complaint focuses on the message Twitter transmits "Tony La Russa is using Twitter!" when you punch in his name after Twitter.com.  This is obviously not going to carry the day. 

Fair Use:  An obvious fair use argument to be made here.

Other Points: 

1. Twitter should get a VeRO-like policy.  Basically, it should formalize its takedown mechanism for fake/jacked accounts.  The court in the eBay/Tiffany case liked eBay's VeRO-program, which is basically a non-statutory notice/takedown procedure.  (Copyright has the DMCA procedure, this would basically mimic that, but with respect to non-copyright claims.)
2. I can't figure out if the complaint pled around Section 230 or if that was just happenstance.
3. I'm very curious about what happens next procedurally.  Twitter likely wants to remove this to federal court, but I'm not sure off-hand how it goes about doing this. 
   

Bottom line:  La Russa's claims are fairly tenuous, and his damage claims seem weak.  If he wants to spend a bunch of money and subject himself to painful discovery around what his "emotional distress" damages are all about he should go right ahead.  Otherwise, since the account has already been taken down, he should just move on. 

Added: Citizen Media notes that La Russa's lawyer tried to contact Twitter but got "no response".  Anecdotal evidence points in the direction of Twitter not being very diligent about responding 100% of the time.  Twitter should change this, and should really have a standardized procedure.  Just templatize it and make it all online.  Also, La Russa does not look as unreasonable for elevating the issue.

AOL was sued a ways back by plaintiffs who alleged that AOL improperly included advertisements in email sent by AOL subscribers.  (Previous post here.) 

Courthouse News reports that AOL has been sued again by plaintiffs who allege AOL violated the Electronic Communications Privacy Act by inserting ads in emails sent from paid accounts.  (Complaint:  [pdf].)  I haven't taken a close look, but the issue likely is that AOL inserted advertising triggered by key words, and (plaintiffs argue) in the process necessarily accessed the content of user communications.  (Does it make a difference if no human being ever read the contents of the emails?)  Here's an EPIC letter flagging similar issues around gmail contextual advertising.  (For background:  Concurring Opinions; Wired (Facebook email censorship).)  Plaintiffs asserted a few other ancillary claims such as unjust enrichment (etc.).