Reply to: Joe Wolf
Re: [IMail Forum] Legality of spam blocking and virus scanning on Saturday
9:51:15 PM
I have to respond here. After being in the online industry for
over 22 years here in Chicago, we have witnessed litigation, and
participated in many provider forums, and an AUP and/or TOS, if
properly written and consented to, makes for a solid case of
consent for filtered services. I would agree that any one
promising 100% virus free email would be at great risk. But a
best efforts on antivirus and filtering with proper QC follow-up
procedures makes for a solid and reasonable case. There is much
precedence here in software copyright protection which follows a
verifiable consent model.
You are correct that warranty issues may arise, but if no
warranty is offered, and the user consents to assume all risks of
using such services and those risks are clearly outlined, he or
she will have an awful tough time prosecuting any potential
litigation.
--
Roger Heath
----- Copy of Original Message(s): -----
J> Without disclosing my profession you have brought out a huge issue many have
J> been looking for direction on. You touched on some issues that peak my
J> interest. To summarize my opinion:
J> #1 If you as an ISP present your product as being "virus scanned" or
J> something similar (I've seen some claim to be 100% virus free) then you have
J> issue a warranty to the customer. We all know that the viruses are always
J> ahead of the virus scanners and sooner or later one will get through. If
J> that virus causes damage in any way to any of your customers I would argue
J> that you are completely liable for all damages. On the flip side, if you
J> didn't virus scan at all you present no warranty and would not be liable.
J> #2 If you as an ISP used software to "scan" or "validate" any messages I
J> send or receive I believe you are liable for any non-delivery of such
J> messages. If I send a message to someone as your customer, and for any
J> reason you discard that message as SPAM or virus, you must be liable for any
J> damages you cause due to non-delivery.
J> Please don't argue TOS or AUP will protect you because it won't. It won't
J> matter what you put in that agreement it will normally be set aside in the
J> event of your negligence.
J> The bottom line is that it is my opinion that when you decide to scan
J> messages or content for viruses, spam, or anything else you take full and
J> complete responsibility for the damages that may result. False positives
J> happen all the time. These are dangerous practices that I would never
J> advise anyone to engage in.
J> The courts will eventually work this out, but as an "informed" individual it
J> seems that the eventual conclusion is clear... you are liable.
J> Please don't accept the forgoing as legal advice. Contact your attorney for
J> specific legal advice.
J> -Joe
J> ----- Original Message -----
J> From: "Jon Hall" <[EMAIL PROTECTED]>
J> To: <[EMAIL PROTECTED]>
J> Sent: Saturday, March 16, 2002 12:55 AM
J> Subject: [IMail Forum] Legality of spam blocking and virus scanning
>> Let me say that I am not trying to start a flame war or anything, and
>> think that both spam filtering and virus scanning at the mail server are
>> good things. However...
>>
>> ISP's, and web hosters are all in essence, but not really common
>> carriers (in the US). We cannot be prosecuted for any bad stuff (like
>> spam, viruses, or bomb threats) that is passed through our networks.
>> However there is a lot of legal precedence in the US and abroad that if
>> you taking upon the role of editor, that you become responsible for the
>> content.
>>
>> So does scanning viruses and filtering spam for users, equal editorial
>> responsibility? I personally think so, but it hasn't been tested in
>> court yet to my knowledge. I see a scenario where a semi-legitimate
>> spammer sues an ISP for blocking his "marketing" that a user wanted,
>> because somehow he got on a filter list, or how about the business who
>> thought their ISP was filtering viruses and one gets through and wipes
>> out a million dollar database?
>>
>> Just one of those things to keep in the back of your mind...
>>
>> jon
>>
>>
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>>
>> An Archive of this list is available at:
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>>
J> Please visit http://www.ipswitch.com/support/mailing-lists.html
J> to be removed from this list.
J> An Archive of this list is available at:
J> http://www.mail-archive.com/imail_forum%40list.ipswitch.com/
J> Please visit the Knowledge Base for answers to frequently asked
J> questions: http://www.ipswitch.com/support/IMail/
J> --
J> ActivatorMail(tm) ver.030302 Scanned for all viruses by
J> www.activatormail.com intelligent anti-virus anti-spam service
--
ActivatorMail(tm) ver.030302 Scanned for all viruses by
www.activatormail.com intelligent anti-virus anti-spam service
Please visit http://www.ipswitch.com/support/mailing-lists.html
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An Archive of this list is available at:
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