Gotta be careful

[Steve]

Filmmaker Sues ISP Over Termination of E-Mail Service

Carl S. Kaplan
NY Times 8/14/98


Last summer, Peter Hall, a New York-based independent filmmaker, was
readying the premier of his first feature, "Delinquent." There were
film critics to schmooze, T-shirts and postcards to print and a Web
site to design. The writer-director planned to coordinate much of
the promotion by e-mail. 

But about a month before the premiere, Hall was alarmed to find that
he was unable to access his e-mail account. He said he called
customer service for his Internet service provider, Earthlink
Network Inc., and was told that the company had closed his account
because he had "illegally accessed another provider's service." 

"It was complete gibberish," Hall recalled recently. "I felt they
were accusing me of doing something that wasn't kosher, but I didn't
know what. It was a totally impossible and absurd situation. I had
done nothing wrong." 

Two weeks ago, Hall fought back. He went to court to seek over $7
million in damages from Earthlink, claiming injuries to his film
business and mental health stemming from the allegedly wrongful
disruption in e-mail service. According to legal papers filed in
federal district court in Manhattan, the lawsuit charges Earthlink,
based in Pasadena, Calif., with breach of contract, libel,
negligence and a violation of the Electronic Communications Privacy
Act, among other counts. 

Kirsten Kappos, a spokeswoman for Earthlink, said the company would
vigorously fight the lawsuit. "Our investigation is ongoing, and
based on preliminary information, we have factual and legal defenses
and we will aggressively defend ourselves," she said. She declined
further comment. 

Legal and online experts say the novel case could help establish
needed rules of the road for ISPs who want to shut down an e-mail
account -- which can be a lifeline for many small entrepreneurs. 

Hall's travails began on Aug. 6, 1997, when he turned on his
computer to check his e-mail and found that his password was refused.
This was bad timing. His film, five years in gestation, was set to be
unveiled in five weeks. 

Over the next few days, after several anxious phone calls and letters
to the company, plus some media coverage, Hall discovered that
Earthlink's "abuse" department had labeled him a "spammer," someone
who sends out vast amounts of unsolicited e-mail. Specifically, an
Earthlink official accused Hall of spamming America Online
subscribers at 3 A.M. on Aug. 1, according to court papers. Spamming
is a violation of Earthlink's subscription agreement and is grounds
for immediate termination of an account upon notice to the
subscriber. 

Escalating the situation, Earthlink on Aug. 6 posted to three
separate public discussion groups a "Net Abuse Report" that referred
to Hall's e-mail address, "lot99," and announced that the account had
been terminated, according to the complaint. "[W]e continue to make
every effort to rid the world of Spam," the message said. Hall claims
in his court filing that he was falsely accused and had his account
terminated without the required notice or an opportunity to defend
himself. 

Six days after the e-mail issue began, Hall got the full account. He
was told by a security official at UUNet Technologies Inc., which
carries network traffic for many ISPs, that it had mistakenly told
Earthlink he was a spammer. The mixup was evidently due to a false
tracking number on a real spammer's output that matched one on some of
Hall's messages. UUNet informed Earthlink of the mishap five days
after Hall discovered that his account was closed, according to the
court papers. 

Earthlink eventually tried to make up with Hall by offering him six
months of free service, but Hall said he declined the offer. "I
started yelling at them" over the phone, he said. "It was the first
time I yelled at them. I had already spent more money than the offer
was worth on telephone calls, letters and admission to a hacker
convention," he added, referring to a meeting of hacking aficionados
in New York City where he had hoped to find a savvy lawyer. 

In his lawsuit, Hall claims Earthlink defamed him when it posted a
message to a discussion group that indicated the movie director was a
spammer. And at least some online experts think the term "spammer" is
sufficiently contemptible to amount to libel. 

"Spammers are scum," said Paul Hoffman, director of the Internet Mail
Consortium, a trade group for Internet mail companies. "I don't know
anyone who wouldn't find the term 'spammer' heavily pejorative." 

Ken Bass, a Washington-based lawyer who has a large Internet-related
practice, added: "Assuming the facts are there [as alleged in the
complaint], and assuming he can show actual financial injury, he's
got a good [libel] claim." 

Andrew Grosso, a lawyer for Hall, said he believed the case was
legally significant because it could result in a ruling that an ISP
has a legal duty to give a customer notice of an impending account
termination and a reasonable opportunity to defend against the charge
-- whether such obligations are spelled out in a subscriber contract
or not. 

In addition, Grosso said, ISPs have a legal duty to promptly forward
e-mail from a closed account to a subscriber's new account. Grosso
claimed that Earthlink did not fully forward Hall's old e-mail --
nearly 600 messages -- to his new account until recently. At the
least, said the lawyer, an ISP should bounce e-mail back to the
sender when an account is closed. 

"We are saying there is a duty in cyberspace for an ISP to deliver
the mail or send it back," Grosso said. 

Such legal obligations for ISPs are not universally recognized at
present, said Hoffman of the Internet Mail Consortium. 

But that may change. According to Bass, an ISP's suspension of an
e-mail account on the basis of one accusation of abuse is "an unwise
and risky action for an ISP to take." 

"This is a new area of law, but I have no doubt that courts will find
that ISPs have some liability for the erroneous, intentional blocking
of e-mail," Bass said. 

For his part, Hall says he is trying to move on to his next film.
Could it be about e-mail? "No way," he said. "People think my legal
story is a great idea for a movie, but how exciting is a computer
screen? You can't make a movie about making telephone calls and
sending faxes and being driven out of your wits." 

Copyright 1998 The New York Times Company 






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