Somebody Hasn’t Read All of the CAN-SPAM Act

Big news today: Holomaxx Technologies filed a couple of lawsuits. One targets Yahoo and Cisco, and the other targets Microsoft and Return Path. In both, Holomaxx makes statements that suggest it doesn’t have a firm grasp of the CAN-SPAM Act.

Here’s a snippet:

HOLOMAXX is therefore entitled to:

A declaration that:

1. HOLOMAXX’s current email practices, as set forth herein, are in accord with the Can-Spam Act;
2. Email sent by HOLOMAXX in accord with such practices are not spam; and
3. HOLOMAXX has the right to send such legitimate, non-spam emails directly to the intended recipient’s primary inbox, without interception, deprioritization, blocking, delay, or other interference.

While Holomaxx’s practices may comply with CAN-SPAM requirements, two major obstacles stand in the way of winning on CAN-SPAM compliance alone. As Al Iverson points out: “Doesn’t CDA Section 230 already nullify Holomaxx’s claims here?”¹ 

My understanding is that the CDA does generally apply to filtering and blocking decisions. If nothing else, e360 Insight’s loss to Comcast shows that. Also, CAN-SPAM itself contains this (ominous for Holomaxx) bit:

Nothing in this chapter shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages.

15 USC 7707(c)

So, I guess we can congratulate Holomaxx on following the law. But we also need to remember that compliance with the law doesn't guarantee your email will be delivered at all, much less to the inbox.

Professor Goldman posted the case filed against Yahoo:

And I grabbed the complaint filed against Microsoft: