A three-judge panel of the 2nd U.S. Circuit Court of Appeals upheld a lower court that found EarthLink had every right to suspend a subscriber's account with the ISP over suspicion of spam.
The subscriber, Peter Hall and his Big Bad Productions, claimed EarthLink intercepted his e-mail illegally, but the 2nd Circuit Court said what EarthLink did wasn't exactly an interception.
The case involved the independent filmmaker's 1997 film, Delinquent. Hall planned to use his EarthLink e-mail account to promote the film premieres in New York and Los Angeles until UUNet complained to EarthLink that Hall was spamming.
That got EarthLink to terminate Hall's access and put his e-mail address into a Net Abuse Report list of e-mail abusers. But six days later – with Wired magazine pitching in on the discussions – EarthLink determined Hall was no spammer and, according to EarthLink, offered to reinstate him.
Except that, as the 2nd Circuit Court noted, Hall claimed he asked EarthLink to turn his service back on but EarthLink didn't do it, while EarthLink claimed Hall refused its offer to reinstate him and hit them with obscenities in the bargain – all while EarthLink, during an eleven-month period in which Hall's account had not been re-opened, received and stored about 591 e-mails sent to Hall's address, e-mails EarthLink sent Hall in 1998.
That was when Hall sued EarthLink, accusing the ISP of violating the Electronic Communications Privacy Act by "intercepting" the stored e-mails.
"EarthLink presented testimony that, at the time relevant to this action, it did not have the ability to bounce e-mail back to senders after the termination of an account," wrote Judge Rosemary Pooler for the 2nd Circuit Court panel. "Because there is no evidence on the record that EarthLink was not acting within the ordinary course of its business, there is no material issue of fact and summary judgment was appropriate."
