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Judges protect right to boot suspected spammer

Appeals court says EarthLink can't be held liable for disconnecting a customer it believed was spamming--even though he wasn't.

A federal appeals court has ruled that EarthLink was within its rights to disconnect a customer who it incorrectly believed to be spamming.

EarthLink pulled the plug on independent film producer Peter Hall's account in August 1997 after receiving a report from UUNet, its network provider, that Hall was sending out bulk junk e-mail. Realizing its mistake about a week later, EarthLink offered a public retraction and forwarded Hall about 16 e-mail messages that had accumulated in his account during that time.

It's unclear what happened next--each side accuses the other of being unwilling to reconnect the account--but EarthLink ended up accepting e-mail messages to Hall's account and quietly storing them in a mail spool rather than bouncing them as undeliverable. Hall sued EarthLink for $2 million in July 1998, charging that the initial disconnection was unlawful, and that the missed e-mail resulted in his low-budget film, "Delinquent," becoming a flop.

The 2nd Circuit Court of Appeals ruled Tuesday that Hall's legal theories were speculative and affirmed a lower court's ruling that dismissed the case. Hall claimed that Internet service providers fall into a "public interest" category that prevents them from quickly booting customers who they honestly believed were spamming.

"Hall's claims against EarthLink flow from the contract, and Hall has not shown that EarthLink owed him an additional duty (beyond the contract) which would justify relief," the three-judge panel concluded.

One of the more novel portions of the lawsuit, filed by Washington, D.C., lawyer Andrew Grosso, claimed that EarthLink violated federal wiretapping laws by "intentionally intercepting" his inbound e-mail.

The appeals court rejected that reasoning, saying that "EarthLink's continued reception of e-mails" didn't count as an interception because it was conducted as part of the ordinary course of business for an Internet service provider. Federal law grants any Internet or telephone provider an exception for devices or technology used "in the ordinary course of its business."

The panel upheld a December 2003 district court ruling that tossed out a battery of other charges that Hall had levied against EarthLink: breach of the implied covenant of good faith and fair dealing, prima facie tort, libel, negligent appropriation of electronic communication, intentional interference with electronic communication, and breach of contract.