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.
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.
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."