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

Company on blacklist says it was defamed<br><br>

BY HOWARD MINTZ, Mercury News<br><br>

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.''<br><br>

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.<br><br>

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.<br><br>

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.<br><br>

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.<br><br>

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.''<br><br>

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.<br><br>

``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.

<hr>
Contact Howard Mintz at hmintz@sjmercury.com or
(408) 286-0236.