EarthLink lands a win in phishing suit

EarthLink incorrectly tells its customers that a legitimate bank is a phishing Web site. But it still wins in federal court.

Declan McCullagh
Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
2 min read
EarthLink can't be held liable for incorrectly identifying the Web site of a legitimate bank as a fraudulent attempt to snatch customers' identities, a federal judge has ruled.

U.S. District Judge John Shabaz in Wisconsin has tossed out a case that Associated Bank-Corp. brought against the Internet service provider in April claiming negligence and injury to its business reputation.

EarthLink had warned its customers who installed a free "ScamBlocker" toolbar--and visited AssociatedBank.com--that the Web site was "potentially fraudulent" and said that they should "not continue to this potentially risky site."

The warning was wrong. Associated Bank, headquartered in Green Bay, Wis., with more than 300 locations in the Midwest, operated a legitimate Web site.

But Shabaz reasoned in his Sept. 13 opinion that EarthLink was immunized from the lawsuit under a section of the 1996 Telecommunications Act that said an Internet provider can't be "treated as the publisher or speaker of any information provided by another information content provider."

Because the company's list of "phishing" Web sites had been licensed from a third party, Shabaz said that EarthLink was off the hook. "Because the evidence indicates the information came from another provider, defendant cannot be held liable for the republication of the statements," he wrote.

This case is the latest to test the elasticity of the Telecommunications Act's immunization, which Congress appears to have intended to protect pornography filtering but was written extremely broadly. In one famous case pitting Clinton White House aide Sidney Blumenthal against Matt Drudge, that immunization permitted America Online to escape liability for republishing Drudge's false comments.

Eric Goldman, a law professor at Marquette University, wrote on Wednesday that the judge should have investigated who wrote the warning language--EarthLink or its supplier of the list of Web sites. Also, Goldman said, "Associated Bank could try to sue EarthLink's vendor who graded the site as a phishing site."