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Spamming and Spoofing

Cyber Promotions, Inc. v. America Online, Inc., 948 F.Supp. 436 (E.D. Pa 1996).

Summary

The core issue presented in these consolidated cases was whether Cyber Promotion’s freedom of speech provided it with an unfettered right to access AOL’s system and spam AOL’s e-mail customers. The court held that AOL was not the equivalent of a “state actor” and that, as a private actor, AOL had a right to block Cyber Promotion’s spam from its network.

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Analysis

This litigation refers to two consolidated cases. Cyber Promotions (“Cyber”) filed suit first in March, 1996, after receiving several e-mail bombs from AOL which caused at least two of Cyber Promotions' ISPs to terminate service contracts with Cyber. Cyber's complaint included claims of violations of the Computer Fraud and Abuse Act and state law claims of interference with contractual relations and unfair competition.

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Approximately 14 days later, AOL filed suit against Cyber alleging trademark infringement and dilution, unfair competition, false designation of origin, false advertising and a variety of state and federal statutory violations. Cyber amended its complaint to add a count seeking a declaration that Cyber had a “right” to send spam to AOL members via the Internet.

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After the cases were consolidated, the court asked the parties to brief the core issue presented: Whether Cyber had a First Amendment right to send spam to AOL's members and whether AOL had a constitutionally based property right to block Cyber’s spam on its network. After briefing, AOL filed a motion for summary judgment which the court granted.

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In opposing that motion, Cyber argued that although AOL was a private online company, it became a “state actor” by the performance of an exclusive public function. The “exclusive public function” was AOL’s providing its members with Internet e-mail and acting as the sole conduit for sending and receiving that e-mail. According to Cyber, these acts “opened up” that portion of AOL private system that collected, sent and distributed e-mail for public use. While the Court agreed that AOL had indeed opened its e-mail system to the public, that was not enough to establish that AOL was performing an “exclusive public function” because AOL’s operation of its e-mail system was not an exercise of municipal power or an essential public service. Thus, AOL had a right to block Cyber’s spam to AOL’s members.

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