ISP told to allow spammer, for now

A federal judge orders AGIS to restore Internet service to Cyber Promotions, ruling that the backbone's termination was an improper breach of contract.

A federal judge today ordered AGIS to restore service to Cyber Promotions, ruling that the junk emailer's termination earlier this month was an improper breach of contract between the two companies.

The ruling, issued by U.S. District Judge Anita Brody in Philadelphia, orders AGIS to reconnect Cyber Promotions. But Brody made clear that AGIS is free to boot Cyber Promotions October 16 or earlier if the mass emailer can find a new backbone provider. AGIS had disconnected Cyber Promotions and two other companies that send unsolicited bulk mailings two weeks ago.

Despite the limited relief provided by the ruling, Cyber Promotions cast it as a victory. "This ruling is another vital precedent in the protection of free speech on the Internet," Cyber Promotions' attorney Ralph Jacobs said in a statement. "It is a setback for cybervandals who try to take the law into their own hands to force unpopular sites off the Web."

But an attorney for AGIS warned not to make too much out of the ruling, stressing that Brody has yet to delve into the merits of the case. "[The] grant of a preliminary injunction is just that--preliminary," AGIS's lawyer Phil Katauskas said in a teleconference with reporters. "It does not win or lose the case."

The case will now focus on other issues, such as whether AGIS should pay monetary awards to Cyber Promotions for terminating its service.

Antispammers, many of whom have made it their mission to rid the Internet of junk email, have said that if Cyber Promotions is kicked off AGIS it will have a difficult time finding a new host in cyberspace. (See related story)

Cyber Promotions' history is riddled with disconnections from networks, in no small part because of antispammers' efforts.

In arguing for the preliminary injunction, Cyber Promotions said it needed the extension while it lined up a new ISP to avoid a lapse in service to its customers. According to the ruling, Cyber Promotions is soliciting other ISPs for a connection to the Net, including AT&T and Bell Atlantic.

A spokesman for AT&T declined to say whether the company was in talks with the junk emailer but stressed that the company has a firm policy forbidding its customers from sending spam. Representatives from Bell Atlantic could not be reached for comment, but according to a page on the company's Web site, the ISP also prohibits the practice.

In ruling that AGIS's termination of Cyber Promotions was improper, Brody pointed to a paragraph in the service contract that required AGIS to give 30 days' notice before taking Cyber Promotions offline.

AGIS had argued that recent attacks by hackers on Cyber Promotions voided that provision, pointing to another clause in the contract that excused the backbone provider for service lapses due to factors beyond its control.

The attacks were apparently carried out by antispammers who used a common Internet feature known as "pings" to overwhelm Cyber Promotions' servers. A ping is a message sent by one Internet site to test whether it can communicate with another Internet site. When too many pings are directed at a site, however, the servers can be brought to a standstill.

Brody rejected AGIS's line of reasoning, saying the ISP knew Cyber Promotions was unpopular and the subject of such attacks when it agreed to provide it service. "AGIS was aware that its grant of access to Cyber might result in ping attacks on its system," the judge held. "Furthermore, AGIS gave assurances to Cyber Promotions that it would be able to cope with such attacks."

The judge stressed that her decision was based on established contract law, adding that Cyber Promotions' unpopular status on the Internet "does not mean that [it] is not entitled to have its contracts enforced in a court of law or that Cyber Promotions is not entitled to such injunctive relief as any similarly situated business."

Dave Kramer, an attorney at Wilson Sonsini Goodrich & Rosati, agreed that the case had more to do with contract law than whether Cyber Promotions has a fundamental right to send spam.

"I don't think this [decision] says anything about the practice of spamming," said Kramer, who has taken on Cyber Promotions in two separate cases involving CompuServe and ISP Concentric. "What it says to Internet service providers is make sure you know what you're getting into when you sign up customers. If you don't want to be associated with spammers, make sure your standard contract prohibits the practice and gives you the right to immediately terminate anyone who engages in it."

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