Cyber Promotions has lost the most recent battle in the war over junk email, but its president, Sanford Wallace, said he had a few tricks up his sleeve and vowed to press on.
The bulk emailer lost its backbone service last night, just hours after the expiration of a court order requiring his provider, AGIS, to reconnect him to the Internet, both sides confirmed. Nonetheless, Wallace claimed, it's still largely business as usual.
"We're completely set up on the spam side, but we don't have a Web site host," Wallace told CNET's NEWS.COM. He explained that he has been able to patch together a number of "bandwidth partners" that are willing to send out spam. "As we speak we are sending email."
While the company may still be sending email, antispammers are sure to continue their fight by tracking down and confronting Wallace's "partners." They have, in the past, succeeded in getting Cyber Promotions kicked off of several services.
As reported earlier, AGIS discontinued service to Cyber Promotions and to two similar businesses in mid-September, citing antispammers' constant attacks on AGIS's systems. Wallace, in turn, sued AGIS for breach of contract. Nearly three weeks ago, a federal judge in Philadelphia ruled that AGIS breached a clause in its contract with Cyber Promotions requiring 30 days' notice before yanking its Net access. She also issued an injunction requiring AGIS to restore service until yesterday.
Wallace alleged that AGIS's most recent action breaches its contract with Cyber Promotions and will turn up the heat in the pending court battle between the two companies.
"We have plenty of provable damages, which we plan to pursue," he said, adding that the contract between the two companies permits AGIS to yank service only in the event that Cyber Promotions commits a breach.
AGIS chief executive Phil Lawlor countered that his company was within its rights under the contract to disconnect Wallace.
"We wouldn't have turned him off if we didn't feel he was in violation with AGIS," Lawlor told NEWS.COM. "What he was violating was the acceptable use of our network and of others' networks." Lawlor said AGIS's policy has always forbid the sending of commercial email to those who don't want to receive it, and added that the company is in the process of investigating other subscribers to determine if they too are violating that policy. If they are, he added, they will also be disconnected.
As the case goes forward, a holding by U.S. District Court Judge Anita Brody, who is hearing the case, seems to bolster Wallace's standing. She said in late September that AGIS was aware of Cyber Promotions' practices and noted that AGIS had promised to fend off attacks by antispammers. On that basis, she ruled, AGIS couldn't back out of its commitment on the grounds that its system is under siege.
Wallace estimated it would be two to three weeks before he could find a temporary host for his Web site. He said his ultimate goal is to basically be his own backbone provider. The bulk emailer has been bounced from one ISP to another as each complained that attacks waged against the spammer wreaked havoc on its network infrastructure.
Still, Wallace insisted, he has two reasons not to throw in the towel just yet. "The first is that I've already earned $1.5 million in sales. The second is when I believe in something like free commercial speech, I can't understand why people are allowing a small number of vigilantes to stop it."