e-Commerce Docket Sheet

A domain-name registrar that automatically renewed domain names following e-mail notice to the registrant did not engage in a deceptive trade practice under New York law. Wornow v. Register.com, Inc., 778 N.Y.S.2d 25 (Sup. Ct., App. Div. June 8, 2004). The court noted that the registration agreement permitted the registrar to unilaterally modify the contract upon e-mail notice to the plaintiff, and reserved to the registrant the right to cancel the contract once notified. The registrar modified the agreement to provide for automatic domain-name renewal, and sent notice by e-mail of the modification and the expiring domain names. The court found that the plaintiff failed to receive the notices of the renewals and attendant credit-card charges only because he did not update his e-mail address with the registrar as required by the agreement.

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Failure To Click Submit Button Justified
Web Site Bid Rejection

A bidder's failure to click the submit button on a completed Web-site form justified the rejection of its bid, even though the failure to click the submit button was understood to have been an oversight. Glasgow, Inc. v. Pennsylvania Department of Transportation, 2004 Pa. Commw. LEXIS 411 (Pa. Commonwealth Ct. June 4, 2004). The court found that the bid specifications required the low bidder to “submit” the required information by the specified time, and the mandatory language of the bid specification rendered the requirement nonwaivable. The court drew an analogy in the situation to that of an Internet consumer transaction, in which a party is not bound to the terms of the transaction until the submit button is clicked.

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e-Mail Arbitration Policy Notice Is
Insufficient To Bind Employee

A dispute-resolution policy requiring arbitration of federal employment-discrimination claims is not binding on an employee, where notice of the policy was given by an e-mail containing links to the policy, but there was no evidence that the employee read the e-mail or the linked policy documents. Campbell v. General Dynamics Government Systems Corp., No. 03-11848-NG, 2004 U.S. Dist. LEXIS 10552 (D. Mass June 3, 2004). The court found that while the employer's e-mail tracking log showed that the employee opened the e-mail, there was no evidence to rebut the employee's statement that he did not actually read either the e-mail itself or the linked policy documents. The court commented that “receiving an email in a virtual mailbox is not the same as receiving a letter in a real mailbox,” and found that “sending a mass email message, without more, fails to constitute the minimal level of notice” required by first circuit precedent applicable to waiver of jury-trial rights under federal antidiscrimination laws.

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The Term 'Mail' In '92 Law Doesn't Cover e-Mail

As used in a Minnesota statute enacted in 1992, the plain meaning of the term mail does not include electronic mail. Opay v. Experian Information Solutions, Inc., No. A03-1832 (Minn. Ct. App. June 15, 2004). The statute limited the amount that could be charged for a consumer credit report requested and received “by mail.” The defendant had charged in excess of that amount for a credit report requested and received via e-mail. The court noted that in 1992, when the statute was enacted, dictionaries did not include electronic transmissions in the definition of mail. The court also noted that subsequent to 1992, the Minnesota legislature amended the statute to lower the amount of the permissible charge, but did not add electronic transmissions to the definition of mail, even though it did so with respect to several other Minnesota statutes.

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Accidental Misdirection Of e-Mail To ISP Server
Does Not Support Civil Action Under CFAA

In a situation where an e-mail server crashed because of accidentally misaddressed e-mail rather than deliberate conduct, the civil cause of action by an Internet service provider (ISP) under the Computer Fraud and Abuse Act (CFAA) against the corporation whose employees generated the e-mail should be dismissed on summary judgment. Computer Networks, Inc. v. Sears, Roebuck and Co., No. 02-11992-RGS (D. Mass. June 10, 2004). The court, referring to the case as “somewhat bizarre,” concluded that the ISP had failed to provide evidence to support its claims that its server was “deliberately infiltrated” by retailing giant Sears, “a corporation with computer resources rivaling the Pentagon.” The court concluded that the most plausible explanation for the misaddressed e-mail was that the internal e-mail address for the corporation's customer-care division, @cnetwork.sears.com, had been accidentally truncated by some users to @cnetwork.com, and thereby was directed to the ISP's server.

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Anti-Spam Service's Distributing Complaints
To Sender ISPs Immune Under CDA '230

Distribution of spam complaints that an anti-spam service's members had received to an alleged spam sender's Internet service providers (ISPs) is immune under Section 230 of the Communications Decency Act (CDA) because the service did not alter the content of the complaints. Optinrealbig.com, LLC v. Ironport Systems, Inc., No. C 04-1687, 2004 U.S. Dist. LEXIS 11665 (N.D. Cal. June 25, 2004). The court found that the service was immune even though it played “an active, even aggressive role” in distributing the user complaints to upstream providers of the alleged spammer's ISP. The court declined to issue the preliminary injunction requested by the plaintiff commercial e-mail sender that was the subject of numerous complaints distributed by the spam service ' on the ground that the distribution was immune under the CDA and also on alternative grounds that the plaintiff had failed to show a likelihood of success on the merits of its claims for trade libel, interference with contractual relations and unfair business practices.

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Spammer Had Reason To Know Some
Recipients Were WA Residents

In a civil suit under the Washington Commercial Electronic Mail Act, a showing that 100,000 to 1 million deceptive e-mails were sent each week over a four-month period demonstrates the sender's knowledge that he was sending deceptive spam to Washington residents. State v. Heckel, No. 51204-8-I, 2004 Wash. App. LEXIS 1306 (Wash. Ct. App. June 28, 2004). The court found that the sender's knowledge was also established by the fact that some of the e-mail recipients had registered on a do-not-spam registry that Washington Internet service providers maintained. The court also rejected constitutional arguments, and upheld the trial court's grant of injunctive relief, a $2000 civil penalty, and attorney fees and costs in excess of $96,000.

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Posting Personal Info. On Web Site Violates Antiharassment Order

The subject of an antiharassment order was properly held in violation of a provision prohibiting him from keeping staff and residents of a housing development “under surveillance” when he posted information on them on a publicly accessible Web site. In re Trummel, No. 48662-4-I, 2004, 2004 Wash App. LEXIS 1208 (Wash. Ct. App. June 16, 2004). The appeals court held that the posting of victim names and home addresses on the Web site, accompanied by “inflammatory rhetoric connecting them with concepts like Islamic terrorism and racism,” violated the antiharassment order because it caused the victims to “reasonably feel under surveillance.” The appeals court also held that the subsequent incarceration of the subject, following his reposting of the information he was ordered to remove, was justified in light of the court's specific warnings of the likelihood of incarceration, and the fact that lesser sanctions had failed to bring compliance.

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Child Online Protection Act Properly Enjoined
Pending Trial On The Merits

The federal district court considering a challenge to the constitutionality of the Child Online Protection Act (COPA), which imposes fines and a prison term for posting material on the Internet that is “harmful to minors,” did not err in entering a preliminary injunction against the Act's enforcement. Ashcroft v. American Civil Liberties Union, No. 03-218, 2004 U.S. LEXIS 4762 (U.S. June 29, 2004). The court concluded that the government had failed to show that use of blocking and filtering software was a less-restrictive alternative means of preventing access to such material by minors than a content-based speech restriction. The court also found that the issuance of the preliminary injunction avoided the extraordinary harm and serious chill on protected speech that might result from application of the statute.

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Enforcement Of Utah Antispyware Law Preliminarily Enjoined

There is a substantial likelihood that Internet advertising company WhenU.com will prevail on the merits of its claim that the Utah Spyware Control Act violates the U.S. Constitution's Commerce Clause. WhenU.com v. State of Utah, No. 040907578 (Utah 3d Judicial Dist. Ct. June 22, 2004). The court concluded that WhenU.com was likely to prevail on its claims concerning the statutory provisions that prohibit use of certain contextual pop-up advertising and that require a specified protocol for user authorization for installation of advertising-delivery software. Regarding the potential harm to WhenU.com pending a hearing on the merits, the court noted that the vagueness in the statute created uncertainty concerning what is required to be in compliance, and that this uncertainty, coupled with the private enforcement provisions of the statute, exposed WhenU.com to “a potential plethora of litigation.” (For more on attempts to regulate adware and spyware, including Utah's law, see “Legislative Update” in the August issue of e-Commerce Law & Strategy.)

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Julian S. Millstein Edward A. Pisacreta Jeffrey D. Neuburger

Automatic Domain Name Renewal Agreement
Not Deceptive Trade Practice Under NY Law

A domain-name registrar that automatically renewed domain names following e-mail notice to the registrant did not engage in a deceptive trade practice under New York law. Wornow v. Register.com, Inc., 778 N.Y.S.2d 25 (Sup. Ct., App. Div. June 8, 2004). The court noted that the registration agreement permitted the registrar to unilaterally modify the contract upon e-mail notice to the plaintiff, and reserved to the registrant the right to cancel the contract once notified. The registrar modified the agreement to provide for automatic domain-name renewal, and sent notice by e-mail of the modification and the expiring domain names. The court found that the plaintiff failed to receive the notices of the renewals and attendant credit-card charges only because he did not update his e-mail address with the registrar as required by the agreement.

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Failure To Click Submit Button Justified
Web Site Bid Rejection

A bidder's failure to click the submit button on a completed Web-site form justified the rejection of its bid, even though the failure to click the submit button was understood to have been an oversight. Glasgow, Inc. v. Pennsylvania Department of Transportation, 2004 Pa. Commw. LEXIS 411 (Pa. Commonwealth Ct. June 4, 2004). The court found that the bid specifications required the low bidder to “submit” the required information by the specified time, and the mandatory language of the bid specification rendered the requirement nonwaivable. The court drew an analogy in the situation to that of an Internet consumer transaction, in which a party is not bound to the terms of the transaction until the submit button is clicked.

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e-Mail Arbitration Policy Notice Is
Insufficient To Bind Employee

A dispute-resolution policy requiring arbitration of federal employment-discrimination claims is not binding on an employee, where notice of the policy was given by an e-mail containing links to the policy, but there was no evidence that the employee read the e-mail or the linked policy documents. Campbell v. General Dynamics Government Systems Corp., No. 03-11848-NG, 2004 U.S. Dist. LEXIS 10552 (D. Mass June 3, 2004). The court found that while the employer's e-mail tracking log showed that the employee opened the e-mail, there was no evidence to rebut the employee's statement that he did not actually read either the e-mail itself or the linked policy documents. The court commented that “receiving an email in a virtual mailbox is not the same as receiving a letter in a real mailbox,” and found that “sending a mass email message, without more, fails to constitute the minimal level of notice” required by first circuit precedent applicable to waiver of jury-trial rights under federal antidiscrimination laws.

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The Term 'Mail' In '92 Law Doesn't Cover e-Mail

As used in a Minnesota statute enacted in 1992, the plain meaning of the term mail does not include electronic mail. Opay v. Experian Information Solutions, Inc ., No. A03-1832 (Minn. Ct. App. June 15, 2004). The statute limited the amount that could be charged for a consumer credit report requested and received “by mail.” The defendant had charged in excess of that amount for a credit report requested and received via e-mail. The court noted that in 1992, when the statute was enacted, dictionaries did not include electronic transmissions in the definition of mail. The court also noted that subsequent to 1992, the Minnesota legislature amended the statute to lower the amount of the permissible charge, but did not add electronic transmissions to the definition of mail, even though it did so with respect to several other Minnesota statutes.

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Accidental Misdirection Of e-Mail To ISP Server
Does Not Support Civil Action Under CFAA

In a situation where an e-mail server crashed because of accidentally misaddressed e-mail rather than deliberate conduct, the civil cause of action by an Internet service provider (ISP) under the Computer Fraud and Abuse Act (CFAA) against the corporation whose employees generated the e-mail should be dismissed on summary judgment. Computer Networks, Inc. v. Sears, Roebuck and Co ., No. 02-11992-RGS (D. Mass. June 10, 2004). The court, referring to the case as “somewhat bizarre,” concluded that the ISP had failed to provide evidence to support its claims that its server was “deliberately infiltrated” by retailing giant Sears, “a corporation with computer resources rivaling the Pentagon.” The court concluded that the most plausible explanation for the misaddressed e-mail was that the internal e-mail address for the corporation's customer-care division, @cnetwork.sears.com, had been accidentally truncated by some users to @cnetwork.com, and thereby was directed to the ISP's server.

---

Anti-Spam Service's Distributing Complaints
To Sender ISPs Immune Under CDA '230

Distribution of spam complaints that an anti-spam service's members had received to an alleged spam sender's Internet service providers (ISPs) is immune under Section 230 of the Communications Decency Act (CDA) because the service did not alter the content of the complaints. Optinrealbig.com, LLC v. Ironport Systems, Inc., No. C 04-1687, 2004 U.S. Dist. LEXIS 11665 (N.D. Cal. June 25, 2004). The court found that the service was immune even though it played “an active, even aggressive role” in distributing the user complaints to upstream providers of the alleged spammer's ISP. The court declined to issue the preliminary injunction requested by the plaintiff commercial e-mail sender that was the subject of numerous complaints distributed by the spam service ' on the ground that the distribution was immune under the CDA and also on alternative grounds that the plaintiff had failed to show a likelihood of success on the merits of its claims for trade libel, interference with contractual relations and unfair business practices.

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Spammer Had Reason To Know Some
Recipients Were WA Residents

In a civil suit under the Washington Commercial Electronic Mail Act, a showing that 100,000 to 1 million deceptive e-mails were sent each week over a four-month period demonstrates the sender's knowledge that he was sending deceptive spam to Washington residents. State v. Heckel, No. 51204-8-I, 2004 Wash. App. LEXIS 1306 (Wash. Ct. App. June 28, 2004). The court found that the sender's knowledge was also established by the fact that some of the e-mail recipients had registered on a do-not-spam registry that Washington Internet service providers maintained. The court also rejected constitutional arguments, and upheld the trial court's grant of injunctive relief, a $2000 civil penalty, and attorney fees and costs in excess of $96,000.

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Posting Personal Info. On Web Site Violates Antiharassment Order

The subject of an antiharassment order was properly held in violation of a provision prohibiting him from keeping staff and residents of a housing development “under surveillance” when he posted information on them on a publicly accessible Web site. In re Trummel, No. 48662-4-I, 2004, 2004 Wash App. LEXIS 1208 (Wash. Ct. App. June 16, 2004). The appeals court held that the posting of victim names and home addresses on the Web site, accompanied by “inflammatory rhetoric connecting them with concepts like Islamic terrorism and racism,” violated the antiharassment order because it caused the victims to “reasonably feel under surveillance.” The appeals court also held that the subsequent incarceration of the subject, following his reposting of the information he was ordered to remove, was justified in light of the court's specific warnings of the likelihood of incarceration, and the fact that lesser sanctions had failed to bring compliance.

---

Child Online Protection Act Properly Enjoined
Pending Trial On The Merits

The federal district court considering a challenge to the constitutionality of the Child Online Protection Act (COPA), which imposes fines and a prison term for posting material on the Internet that is “harmful to minors,” did not err in entering a preliminary injunction against the Act's enforcement. Ashcroft v. American Civil Liberties Union, No. 03-218, 2004 U.S. LEXIS 4762 (U.S. June 29, 2004). The court concluded that the government had failed to show that use of blocking and filtering software was a less-restrictive alternative means of preventing access to such material by minors than a content-based speech restriction. The court also found that the issuance of the preliminary injunction avoided the extraordinary harm and serious chill on protected speech that might result from application of the statute.

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Enforcement Of Utah Antispyware Law Preliminarily Enjoined

There is a substantial likelihood that Internet advertising company WhenU.com will prevail on the merits of its claim that the Utah Spyware Control Act violates the U.S. Constitution's Commerce Clause. WhenU.com v. State of Utah, No. 040907578 (Utah 3d Judicial Dist. Ct. June 22, 2004). The court concluded that WhenU.com was likely to prevail on its claims concerning the statutory provisions that prohibit use of certain contextual pop-up advertising and that require a specified protocol for user authorization for installation of advertising-delivery software. Regarding the potential harm to WhenU.com pending a hearing on the merits, the court noted that the vagueness in the statute created uncertainty concerning what is required to be in compliance, and that this uncertainty, coupled with the private enforcement provisions of the statute, exposed WhenU.com to “a potential plethora of litigation.” (For more on attempts to regulate adware and spyware, including Utah's law, see “Legislative Update” in the August issue of e-Commerce Law & Strategy.)

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Julian S. Millstein Edward A. Pisacreta Jeffrey D. Neuburger New York Brown Raysman Millstein Felder & Steiner LLP