Reply to: Joe Wolf
Re: [IMail Forum] Legality of spam blocking and virus scanning on Sunday 9:46:56
AM
A rational AUP or TOS simply does not promise virus-free or
spam-free email, it warns of the opposite. If content filtering
is involved, it should warn of possible errors that may be
routinely made by such filters.
A user who consents to content filtering then utters sudden
surprise that his mail was filtered is in an 'unreasonable'
circumstance no matter what laws or implied warranties are cited
and may be used. If you depend solely upon filtered email, you
first consented to, to complete your $50m deal, that would
similarly be unreasonable. A person who expects his anti-virus
software to protect him from all new viruses is similarly
adopting a very unreasonable, and to most a ridiculous, stance.
If you have an honest and thorough AUP and TOS that clearly
states the standards for scanning and filtering, including your
own standards, you have little to fear from such people. New laws
limiting provider liability will only aid this situation,
acknowledging such unreasonable pursuits.
Most of the blacklisting cases to date simply involved the
provider then permitting the email to pass his filters. I am not
yet aware of a single case where damages were paid at any time.
But even these minimal legal resolutions did not involve previous
consent which is a much more powerful argument for the provider.
web content filtering providers are also experiencing similar
resolutions and they do involve previous consent.
This reminds me of when I was involved in voluntary standards
development for the F.D.A. when the '76 Medical Device Amendments
were evolving and there were attorneys showing up all over the
place warning of liabilities, when, in the end, the manufacturer
who did his policies, by acceptable standards, and QC right were
at very minimal risk.
Of course there will always be the happy attorney or plaintiff
who happens upon an irrational jury that has no focus on reality
at all who will indeed win such cases, but this will by far be
more the exception rather than the rule. The only exception to
this will generally be the irrational provider who tries to
guarantee 100% spam free or virus free email, or claims that his
filters cannot trap some legitimate emails.
--
Roger Heath
----- Copy of Original Message(s): -----
J> I certainly don't want to start any legal discussion here, but just want to
J> make a couple of points:
J> #1 Have you ever read the license, terms and conditions from the
J> anti-virus software vendors? They have spent millions to cover their a**.
J> I have read maybe 100 ISP AUP, TOS, etc. and not one compares to what the
J> a/v vendors impose on their software. The ISP doesn't even pass on the
J> terms!
J> #2 Most warranties are NOT offered, they are implied. When you present
J> your service as virus free, virus scanned, spam free, etc. you imply a
J> warranty.
J> Tough time litigating? Not in the least. Most realize they are at fault
J> and settle as soon as their attorney reveals their exposure. Most insurance
J> companies bail out on these as well.
J> We didn't even discuss the even bigger liability of dumping messages you
J> have decided are spam. Maybe my $50 mm deal hinged on a timely e-mail that
J> I put three x's in the subject, etc. and you dumped the message. You better
J> bet I'll be after you, and win!
J> -Joe
J> ----- Original Message -----
J> From: "Roger Heath" <[EMAIL PROTECTED]>
J> To: "Joe Wolf" <[EMAIL PROTECTED]>
J> Sent: Sunday, March 17, 2002 9:32 AM
J> Subject: Re[2]: [IMail Forum] Legality of spam blocking and virus scanning
>> Reply to: Joe Wolf
>> Re: [IMail Forum] Legality of spam blocking and virus scanning on
J> 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
J> 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
J> have
>> J> issue a warranty to the customer. We all know that the viruses are
J> always
>> J> ahead of the virus scanners and sooner or later one will get through.
J> If
>> J> that virus causes damage in any way to any of your customers I would
J> argue
>> J> that you are completely liable for all damages. On the flip side, if
J> you
>> J> didn't virus scan at all you present no warranty and would not be
J> liable.
>>
>> J> #2 If you as an ISP used software to "scan" or "validate" any
J> 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
J> 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
J> won't
>> J> matter what you put in that agreement it will normally be set aside in
J> 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
J> and
>> J> complete responsibility for the damages that may result. False
J> 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"
J> 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
J> 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
J> 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
>> >>
>> >>
>> >> Please visit http://www.ipswitch.com/support/mailing-lists.html
>> >> to be removed from this list.
>> >>
>> >> An Archive of this list is available at:
>> >> http://www.mail-archive.com/imail_forum%40list.ipswitch.com/
>> >>
>> >> Please visit the Knowledge Base for answers to frequently asked
>> >> questions: http://www.ipswitch.com/support/IMail/
>> >>
>>
>>
>> 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
>> to be removed from this list.
>>
>> An Archive of this list is available at:
>> http://www.mail-archive.com/imail_forum%40list.ipswitch.com/
>>
>> Please visit the Knowledge Base for answers to frequently asked
>> questions: http://www.ipswitch.com/support/IMail/
>>
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
to be removed from this list.
An Archive of this list is available at:
http://www.mail-archive.com/imail_forum%40list.ipswitch.com/
Please visit the Knowledge Base for answers to frequently asked
questions: http://www.ipswitch.com/support/IMail/
