Everyone complains about junk mail, but no one does anything about it. That is, until America Online (AOL) apparently decided to strike a blow against the burgeoning business of junk E-mail. The result: AOL has found itself the target of a first-of-its-kind lawsuit by a junk E-mailer.
Philadelphia-based Cyber Promotions Inc. is a bulk E-mailer of promotional materials. The company claims to have 4,000 clients and a database of 850,000 recipients. It E-mails thousands of promotions daily. And because AOL has upwards of 5 million users, some of those mailings wind up in AOL mailboxes. AOL, meanwhile, as a matter of policy opposes what it defines as "junk E-mail." According to the Cyber Promotions lawsuit, AOL's efforts to enforce that policy amounted to a malicious attempt to put it out of business by "E-mail bombing" its Internet limited -service providers, UUNet Technologies and VoiceNet.
Here's how the lawsuit tells it: According to Cyber Promotions, AOL collected all the undeliverable messages Cyber Promotions sent to its addresses and returned them en masse to UUNet. It was as if UUNet had received the equivalent of 500,000 letters from Ed McMahon -- all at the same moment. The volume was so great that one of UUNet's computer systems failed -- no easy task, considering that UUNet is one of the largest Internet service providers (ISPs) in the country.
After the computer failure, the suit continues, UUNet decided to drop Cyber Promotions as a client. Cyber Promotions then contracted with VoiceNet to act as its limited service provider, and the same series of events unfolded. Except this time, instead of returning just the current batch of undeliverable mail, AOL also sent back any other previously undeliverable mail from Cyber Promotions. That brought down VoiceNet's computer system.
At this point Cyber Promotions turned to ComCat, yet another ISP. Cyber Promotions alleges that a representative of AOL phoned PREPnet, ComCat's backbone provider, to report that ComCat and Cyber Promotions were violating PREPnet's "acceptable-use policy." PREPnet, the lawsuit says, responded by announcing to ComCat that if it didn't drop Cyber Promotions as a client, ComCat's own access to the Internet would be jeopardized. Cyber Promotions wound up unwired once again. AOL, however, denies that it ever talked to anyone at PREPnet.
In a separate lawsuit filed by AOL against Cyber Promotions, AOL reportedly claims that the bulk E-mailer was using the AOL logo in its mailings to give it credibility. "We notified Cyber Promotions a number of times about its mailings," says AOL spokeswoman Pam McGraw. "We were concerned because Cyber Promotions said in its mailings that AOL endorsed the mailings. That violates AOL guidelines, not to mention the trademark issue."
Cyber Promotions insists it's not the bad guy. "We want to continue to do business," says Sanford Wallace, president of the company. "Bulk E-mail is a good, cheap way to advertise. For small companies, it's a very viable way to get a message out for a fraction of the cost of mainstream advertising." Although the mail it sends might be annoying, Cyber Promotions claims that interfering with and damaging the computer systems of two other companies is in violation of the Computer Fraud and Abuse Act (typically used to stop bank fraud and hacking).
Whatever the outcome of the case, the repercussions are going to affect more than a few people. "Unsolicited E-mail is going to be a serious issue in the industry," says AOL's McGraw. "We're going to have to deal with it."
-- Vladimir Edelman