Intrepid litigant e360 – who has been involved in more unsolicited email lawsuits than I can catalog here – sued Comcast for improperly blocking email sent by e360.  Comcast filed a Motion to Dismiss, which both argues that Comcast’s conduct is protected by Section 230 and that the underlying e360 allegations fail to state claims.  Thanks to spamsuite for the link (access the Motion to Dismiss in pdf here).

A quick initial note – and an unsolicited tip to Comcast’s lawyers.  Throwing around the “s” word has not proven to be particularly effective in unsolicited email litigation (see, e.g., Virtumundo; Mummagraphics).  Whether or not they hate spam, judges have shown that they are more interested in applying the technical requirements of the law, as opposed to whether someone has been labeled as a “well known spammer” by a certain organization based in the UK. 

Section 230 Analysis

A big question could end up being whether Section 230 always mandates dismissal at the pleading stages.  I recall seeing a decision that since Section 230 is an affirmative defense, dismissal based on Section 230 is not appropriate at the pleading stage.  Originally I wasn't sure how useful that decision would be for e360, but based on this discussion, I think it could be quite helpful.  The answer to the question in this case will depend I suppose on whether e360’s allegations allow the court to make the Section 230 call or whether e360 will be able to argue that additional factual development is required. 

On the merits, Comcast cites to a pair of cases which should be familiar – Zango (where Judge Coughenour dismissed Zango’s claims against an anti-virus company based on the anti-virus company's allegedly improper classification) and Pallorium (a state case which is the first to my knowledge to apply Section 230’s blocking provision in this type of a context).  It doesn’t seem like there’s a lot of new ground here, and at first blush it seems like Comcast’s arguments have merit.  But the rub may be whether e360 can somehow exploit cracks in Section 230’s armor.  And on that score, it’s interesting that Comcast cites Doe/GTE, a case which many people cite for the proposition that courts are willing to limit Section 230.  There is language in Doe which supports Comcast's position anyway, but I’m curious what response e360 will have on this issue.

The Underlying Claims

The underlying claims are largely uninteresting.  e360 brought a First Amendment claim, and courts have traditionally showed an unwillingness to recognize these claims, since providers are not government actors.  (Maybe there’s a way to distinguish ISPs . . . tough to say.)  e360 also brought tortious interference claims – it’s unclear whether these claims are based on relationship between e360 and recipients of the emails or between e360’s customers.  e360 also brings a CFAA claim which seems doomed to fail, and an unfair practices claim, which doesn’t seem particularly earthshattering.

My Take

I hate to say it, but Comcast’s motion looks like a winner.  Courts (see, e.g., Zango) have shown an inclination to insulate filtering decisions.  Recognizing a claim in this case would just open up a pandora’s box of litigation in the face of contrary Congressional policy to insulate the precise decisions complained of by e360.  The big question is whether the dispute will be resolved now, on the pleadings, or after some discovery.  And maybe that’s what e360 is after?

Tough to tell.