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Russ Smith, Pro Se v. Trusted Universal Standards In Electronic Transactions

March 15, 2011


The opinion of the court was delivered by: Kugler, United States District Judge

NOT FOR PUBLICATION (Docket Nos. 79, 81, 82)


This matter arises out of the allegedly improper monitoring and blocking of email communications. Presently before the Court is the motion to dismiss filed by Defendants Microsoft, Inc. ("Microsoft"), Cisco Systems, Inc. ("Cisco"), and Comcast Cable Communications, LLC ("Comcast") for failure to state a cause of action under Federal Rule of Civil Procedure 12(b)(6). On January 18, 2011, the Court converted the motion to dismiss into a motion for summary judgment pursuant to Federal Rule of Civil Procedure 12(d). For the reasons discussed below, the motion for summary judgment is GRANTED.


Plaintiff is a subscriber of Comcast's internet services and operates an email server external to the Comcast network. Cisco is a publicly traded company that develops internet protocol-based networking solutions for individuals, companies, and countries.*fn1 Cisco owns Cisco IronPort Systems, LLC ("IronPort"), an email and web security company. IronPort operates the SenderBase service. Through the use of an elaborate data collection system, SenderBase gathers information about individual internet protocol ("IP") addresses. After gathering and analyzing data for each IP address, SenderBase assigns a "reputation score" to the IP address. A reputation score predicts the likelihood that email from a given IP address is spam. SenderBase uses over 120 factors to determine each reputation score including, but not limited to, the number of end-user complaints associated with an IP address and the frequency of URLs appearing in spam or viral messages.

Microsoft is a publicly traded computer software and services company. Microsoft operates a service known as FrontBridge as part of its Exchange Hosted Services ("EHS").*fn2

Microsoft's EHS provides spam and virus filtering software. Microsoft's EHS datasheet provides a detailed description of its spam and virus filtering software. The datasheet contains a diagram that depicts an elaborate system that intercepts, filters, and then delivers emails to intended recipients. Subscribers set their email preferences to provide EHS with guidance regarding how it should filter their e-mail. In order to manage those preferences, subscribers use their home computers to log into the EHS Administrator Center over the Internet. Subscribers may also direct the Administrative Center to quarantine all of their filtered email. Periodically, subscribers who choose to quarantine their filtered email receive notices from the Spam Quarantine listing all quarantined messages. Subscribers interact with the Spam Quarantine computer server by reviewing and releasing quarantine messages. Plaintiff claims that FrontBridge also compiles information about internet email services by collecting email messages and creating IP address "blacklists." (Compl. ¶ 85). Plaintiff also claims that Microsoft "blocks e-mail communications originating from the IP addresses on the blacklists from reaching . . . [its] client[s]." (Id. ¶ 38).

Plaintiff alleges that he experienced difficulty sending outgoing email on two separate occasions in 2008 and 2009. In July 2008, Plaintiff alleges that his outgoing emails were blocked because he was placed on a "blacklist" operated by FrontBridge. A few weeks later, Plaintiff claims that Comcast blocked his outgoing email a second time. After the first blockage, Plaintiff alleges that he contacted Microsoft to determine why he was unable to send email. Microsoft provided Plaintiff with no explanation, but instead promised to provide him with the information it collected from his email. However, Microsoft failed to supply Plaintiff with that information. When Plaintiff contacted Microsoft after the second blockage, Microsoft failed to respond.

In March 2009, Plaintiff discovered that he was unable to send email through his email server. As a result, Plaintiff contacted Comcast to determine the reason for the blockage. Comcast informed Plaintiff that it detected outgoing "spam" sent from his account. Subsequently, Comcast stated that it blocked Plaintiff's outgoing email because Plaintiff's IP address received a low reputation score from Cisco's IronPort service. Thereafter, Plaintiff asked both Comcast and Cisco for the reason why Cisco gave Plaintiff's account a poor reputation score. Plaintiff alleges that both parties refused to provide that information. Plaintiff also alleges that both Comcast and Cisco denied Plaintiff access to all of his account information with the exception of his customer invoices. Plaintiff also claims that Comcast blocked his email a few weeks later, but failed to provide him with an explanation for the blockage when asked to do so.

On July 29, 2009, Plaintiff brought a lawsuit against Comcast, Cisco, Microsoft, and TRUSTe*fn3 in the Superior Court of New Jersey alleging a variety of state law claims and federal statutory claims. Defendants removed the case to the United States District Court for the District of New Jersey on September 4, 2009. (Doc. No. 1). On September 29, 2009, Defendants moved to dismiss all of Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn4 (Doc. No. 29). On May 4, 2010, this Court dismissed all of Plaintiff's claims without prejudice, (Doc. Nos. 63, 64), and on June 3, 2010, Plaintiff filed the Second Amended Complaint, (Doc. No. 68), alleging the following causes of action:

1) Violation of the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-2 et seq. ("NJCFA") (against Comcast, Microsoft, and Cisco);

2) Breach of Contract (against Comcast, Microsoft, and Cisco);

3) Violation of the Federal Wiretap Act, 18 U.S.C. § 2510 et seq. (the "Wiretap Act") (against Microsoft and Cisco);

4) Violation of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J. Stat. Ann. § 2A:156A-1 et seq. (the "New Jersey Wiretap Act") (against Microsoft and Cisco);

5) Defamation (against Microsoft and Cisco);

6) Violation of the Cable Communications Policy Act, 47 U.S.C. § 551 et seq. (against Comcast); and 7) Violation of Comcast's local franchise agreement with Ocean City, New Jersey.

On July 19, 2010, Defendants moved to dismiss the Second Amended Complaint. (Doc.Nos. 79, 81, 82). On January 18, 2011 the Court converted the motion to dismiss into a motion for summary judgment and gave the parties seven days to submit additional documentation. The parties submitted their papers and the motion is now ripe for review.


Defendant originally filed the present motion as a motion to dismiss. When ruling on a motion to dismiss, the Court may only rely on matters within the pleadings. Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). If the court relies upon matters outside of the pleadings, it must convert the motion into a motion for summary judgment pursuant to Federal Rule of Civil Procedure 12(d). See Fed. R. Civ. P. 12(d) ("If on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56."). Because the parties heavily relied upon documents outside the Second Amended Complaint, the Court issued an order converting Defendants' motion to dismiss into a motion for summary judgment. (Doc. No. 93).

Summary judgment is appropriate where the Court is satisfied that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine issue of material fact exists only if the evidence is such that a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the court weighs the evidence presented by the parties, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.

The burden of establishing the nonexistence of a "genuine issue" is on the party moving for summary judgment. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996). The moving party may satisfy its burden either by "produc[ing] evidence showing the absence of a genuine issue of material fact" or by "'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.

Once the moving party satisfies this initial burden, the nonmoving party must "set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e). To do so, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushida Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, to survive summary judgment, the nonmoving party must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Furthermore, "[w]hen opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must 'identify those facts of record which would contradict the facts identified by the movant.'" Corliss v. Varner, 247 F. App'x 353, 354 (3d Cir. 2007) (quoting Port Auth. of N.Y. & N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002)).

In deciding the merits of a motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. 249. Credibility determinations are the province of the factfinder, not the district court. BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).


A.CDA Immunity

All defendants argue that they are immune to liability under the Communications Decency Act of 1996 ("CDA"), 47 U.S.C. § 230 et seq. The CDA was enacted "to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services," 47 U.S.C. § 230(b)(3), and "to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material," 47 U.S.C. § 230(b)(4). To further those objectives, the CDA provides "good Samaritan" immunity for systems and programs designed to block and screen offensive material. Under 47 U.S.C. § 230(c)(2), the "provider" or "user" of an "interactive computer service" cannot be held liable for(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).*fn5

Under the CDA, courts generally construe the terms "interactive computer service" very broadly. Zango v. Kaspersky Lab, No. 07-0807, 2007 WL 5189857, at *3 (W.D. Wash. Aug. 28, 2007); see Carafano v. Inc., 339 F.3d 1119, 1122 (9th Cir. 2003) (noting that "reviewing courts have treated § 230(c) as quite robust, adopting a relatively expansive definition of 'interactive computer service' . . . ."); Batzel v. Smith, 333 F.3d 1018, 1030 n.15 (3d Cir. 2003) (citing examples of "interactive computer service(s)" such as on-line auction website, on-line bookstore, newsgroup, on-line stock quotation service, on-line bulletin board, and on-line gossip column). An "interactive computer service" is defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered to the Internet and such systems operated or services offered by libraries or educational institutions." 47 U.S.C. § 230(f)(2). An "access software provider" is defined as "a provider of software (including client or server software), or enabling tools that do any one or more of the following: (A) filter, screen, or disallow content; (B) pick, choose, analyze, or digest content; or (C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content." 47 U.S.C. § 230(f)(4).

Section 230(c)(2)(A) provides that the user or provider of an interactive computer service may restrict access to material that the user or provider considers to be "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable . . . ." (emphasis added). Importantly, Section 230(c)(2)(A) does not require the user or provider of an interactive computer service to demonstrate that the otherwise "objectionable" material is actually objectionable. Zango, 2007 WL 5189857, at *4. Instead, the provision protects material that the user or provider considers to be objectionable. 47 U.S.C. § 230(c)(2)(A). Users or providers of an interactive computer service may determine that spam is material that is harassing or otherwise objectionable under Section 230(c)(2)(A). Smith v. Trusted Universal Standards in Elec. Transactions, Inc., 09-4567, 2010 WL 1799456, *6 (D.N.J. May 4, 2010) [hereinafter "Smith I"].

Thus, the user or provider of an interactive computer service (or access service provider), who provides information-content providers with the technical means to restrict access to material that the user or provider considers to be (a) obscene, (b) lewd, (c) lascivious, (d) filthy,(e) excessively violent, (f) harassing, or (g) otherwise objectionable, is entitled to immunity under the CDA. Good Samaritan immunity under the CDA applies to all civil claims except claims based on alleged violations of intellectual property law and the Federal Wiretap Act. 47 U.S.C. § 230 (e)(2), (4). Moreover, the CDA also preempts any conflicting state law. 47 U.S.C. § 230(e)(3).


Cisco argues that it is entitled to CDA immunity. In Smith I, the Court found that although Cisco argued that it was an "access service provider,"*fn6 it was not entitled to Section 230 immunity because it failed to argue that it was the user or provider of an "interactive computer2010 WL 1799456, ...

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