e360Insight, which markets products via e-mail, has filed an interesting lawsuit against Comcast.  A copy of the Complaint is available here via SpamSuite.  The lawsuit alleges that Comcast unlawfully blocks those e-mails sent to e360Insight’s customers (which have e-mail through Comcast). Claims are brought for tortious interference, violations of the Computer Fraud and Abuse Act, First Amendment violations, and Unfair Competition and Business Practices.              

             This case will set an interesting legal precedent.  Comcast will likely rely upon 47 USC 230 as a defense to liability.  However, I think there is one aspect of this case–the alleged denial of service attacks–that may get e360Insight over the Section 230 hump.  The reason for this is that the Comcast is alleged to have engaged in very serious misconduct by attacking e360Insight’s computers. 

             It is one thing for Comcast to filter emails.  (Although e360Insight certainly has alleged this conduct is unlawful).   However, if Comcast is engaging in “denial of service attacks” on e360Insight’s e-mail servers, e360Insight may be able to establish unlawful misconduct that is not immunized by Section 230.     While Section 230 provides a shield from liability for certain types of filtering, it was never intended to provide a sword to attack another company/person’s computer system. While e360insight certainly would not win a popularity contest (the Internet is full of blogs and postings slamming it for suing those persons/entities who call it a “spammer”), Comcast should be concerned about the denial of service attack allegations made against it. 

Here’s what e360Insight says Comcast has done to stop its e-mails:
Comcast has regularly held or severely and significantly delayed emails e360 has attempted to send to Comcast customers who have signed up to receive such emails, and refused to release such emails, a practice commonly known as “tar-pitting” and is type of “denial of service attack” on e360’s mail servers. Comcast regularly transmits bogus response data in an attempt to lock up e360’s connections in order to slow or incapacitate e360’s mail servers. e360’s sending mail servers track and report average response time for each recipient domain. The average response time is defined as the time it takes for the recipient domain to process a message; to receive the message and to acknowledge receipt. As recently as December 11, 2007, e360 recorded an average response time of 18,433 seconds or 5.1 hours to process a single email message. During this time, Comcast’s mail servers transmit bogus response information to keep the connective active and to erode e360’s system capacity. In doing so, Comcast has interfered with e360’s ability to send email, not just to Comcast customers who are also e360 customers, but to all e360 customers by shutting down e360’s servers.According to Wikipedia, a denial-of-service attack is: “an attempt to make a computer resource unavailable to its intended users. The means to, motives for, and targets of a DoS attack may vary, but it generally consists of the concerted, malevolent efforts of a person or persons to prevent an Internet site or service from functioning efficiently or at all, temporarily or indefinitely.  Perpetrators of DoS attacks typically target sites or services hosted on high-profile web servers such as banks, credit card payment gateways, and even DNS root servers.  One common method of attack involves saturating the target (victim) machine with external communications requests, such that it cannot respond to legitimate traffic, or responds so slowly as to be rendered effectively unavailable.”