Great Circle Associates List-Managers
(August 2003)

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Subject: Re: spam filtering is legal, was AOL blocking --- lawsuit filed
From: johnl @ iecc . com (John R. Levine)
Organization: I.E.C.C., Trumansburg NY USA
Date: 29 Aug 2003 13:33:47 -0400
To: list-managers @ greatcircle . com
Newsgroups: iecc.lists.list-managers
References: <Pine . GSO . 4 . 31 . 0308281137330 . 8319-100000 @ sun10101 . dn . net>

> If an ISP drops filters email, without reserving the right to do so
> in their terms of service, I wonder if that's a violation of the
> Electronic Communications Privacy Act.  Just a thought

No, it's not.  The ECPA has language about intercepting mail, but if
you read the definitions, "intercept" has its wiretap meaning, i.e.,
snoop on a message, not block or discard it.  This is a common
misunderstanding of the ECPA by people who haven't read the whole

On the other hand 47 USC 230 (part of the CDA, but not the part that
was overturned) gives ISPs broad immunity from liability for
good-faith efforts to block offensive material.  It was written to
reverse the Stratton-Oakmont vs. Prodigy case, and with porn blocking
as the immediate issue, but it's deliberately written broadly enough
that it clearly applies to spam filtering.

Considering how huge both AOL's clueless customer base and their
incoming spam volume is, they do a remarkably good job of telling real
mail from spam.  I can report from experience that they're responsive
when you point out a problem, e.g., last week they quickly adjusted
their virus filters to stop sending bounces when we pointed out that
they were all going to innocent third parties, some of whom were
getting quite a lot of them.

John Levine, johnl @
 iecc .
 com, Primary Perpetrator of "The Internet for Dummies",
Information Superhighwayman wanna-be,, Sewer Commissioner
"More Wiener schnitzel, please", said Tom, revealingly.

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