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Internet service providers may continue to use a “spam” tracker to block unwanted e-mail from the accounts of their customers, a federal judge has ruled in denying a temporary restraining order against the practice. Chief Judge David G. Larimer of the U.S. District Court for the Western District of New York on Tuesday refused to grant a TRO to Harris Interactive Inc., a market research firm based in Rochester, N.Y., to stop Mail Abuse Prevention Systems (MAPS) and its clients from blocking Harris Interactive’s e-mail. In Harris Interactive Inc. v. Mail Abuse Prevention System, 00-CV-6364L(F), Larimer said that, although the plaintiff may be impaired in its business by the e-mail blocking, it has not suffered irreparable harm. “There appears to be evidence that plaintiff can continue its business and, with some modification and alteration of its current business practices, engage in substantial activities with its existing online customers,” Larimer wrote. The court pointed out, however, that the polling firm has alleged “serious harm to its business and reputation” as a result of the e-mail blocking. But that harm may be addressed by a damage award, and does not require equitable relief such as a TRO. FIRST IMPRESSION ISSUES The case presents issues of first impression involving First Amendment rights and Internet privacy as they apply to the free flow of e-mail. Lawyers for MAPS and its chairman, Paul A. Vixie, said that the First Amendment precludes prior restraint, such as a TRO, against “spam” tracking in that all MAPS does is provide information about firms, like Harris Interactive, that send e-mail to their clients’ customers. In court papers, the attorney for Vixie said that an injunction against MAPS “would be totally unprecedented.” “MAPS [is] solely in the business of maintaining a Web site and stating [its] opinions publicly about the privacy dangers of improper Internet practices,” defense lawyers wrote in court papers. The trackers do not instruct their clients to block distribution of Harris Interactive’s e-mail messages. Companies using MAPS services to block unwanted e-mails included Microsoft Corp., BellSouth.net Inc., Qwest Communications International Inc., and Netscape Communications Corp. Internet service providers and others subscribe to the MAPS database, which tags certain sources of e-mail for abusing mailing standards and putting out unsolicited e-mails. The service providers then decide whether to block e-mails from “abusive” sources. Harris Interactive said it does not send any unsolicited e-mails, and that its 6.6 million registered users all have ample opportunity to opt out of receiving e-mail from the pollster. ‘BLACKHOLE LIST’ MAPS has apparently included addresses used by Harris Interactive in what it calls the “Realtime Blackhole List,” which notifies MAPS clients of possible e-mail abusers. Harris Interactive, in a complaint filed last week in Rochester federal court, called MAPS’s placement of its addresses on the “Realtime Blackhole List” an arbitrary and capricious classification that blocked it from communicating with more than two million registered users. Harris Interactive earlier this week dropped America Online Inc. as a defendant because AOL was no longer using MAPS. Harris Interactive is represented by Paul J. Yesawich of Harris Beach & Wilcox in Rochester. Jack Russo of Palo Alto, Calif.’s Russo & Hale represents MAPS. And Michael S. Devorkin of Spitzer & Feldman in Manhattan was the lawyer for MAPS chairman Vixie. Harris Interactive said on Wednesday that it would drop its petition for a preliminary injunction in the case, but that it would continue to seek money damages against MAPS and its clients.

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