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The war against spam has taken a new turn, as a bulk e-mailer seeks the legal blessing of a state court by filing suit against its ISP and several antispam organizations.

If the e-marketer prevails in court, antispam organizations and consumers could have a harder time trying to block the ever-growing flood of e-mail solicitations and advertisements. At the very least, this challenge opens a new chapter in the contest of promotions versus privacy.

Opt-In Marketing Services, an e-mail advertising firm based in Mandeville, Louisiana, has filed suit against its ISP, the backbone provider, and three antispam organizations claiming restraint of trade and deceptive practices.

The e-mailer claims that CoVista Communications of Little Falls, New Jersey, was wrong to cut off part of its Internet access on April 30. According to the suit, the shutdown resulted from complaints received by CoVista and its backbone provider, Qwest Communications of Denver, from Spamcop.net, Spamhaus.org, and the Spam Prevention Early Warning System (SPEWS). All three organizations operate so-called blacklists that enable subscribers to block e-mail coming from suspected spam operations.

Damages Claimed

Opt-In says it went to court to retain its remaining Internet access. The Civil District Court for the Parish of Orleans issued a temporary restraining order on May 10 to prevent CoVista from cutting off the marketing firm, but CoVista ignored the order, says Mark Turner, Opt-In's president. He says his firm had been using CoVista's high-bandwidth DS3 connection--the equivalent of 45 T1 lines--to send between 200 million and 600 million e-mail messages every two days. Turner claims to have lost more than $1 million due to the shutdown and is seeking damages "in the neighborhood of $7 million."

David Lacher, in-house counsel for CoVista, strongly denies all of Opt-In's charges. Opt-In was cut off for violating CoVista's acceptable-use policy, he says. Further, CoVista says that the temporary restraining order was not properly served.

Lacher says the company received several complaints from other CoVista customers whose e-mail addresses were inadvertently blocked when Opt-In was blacklisted. "When our legitimate business customers come to us and say their mail is being blocked and want to know what we've done to cause this to happen, we have to start looking at other potential violations," Lacher says.

Qwest, which provides the backbone for CoVista, "believes this lawsuit is without merit and will defend itself vigorously," says Chris Hardman, spokesperson for the communications giant.

Antispammers Ready

Opt-In Marketing Services is one of several commercial e-mailers associated with Ronnie Scelson, a well-known spammer. However, Turner says that his company complies with all federal and state regulations for commercial e-mail and asks consumers for permission before sending advertisements to their in-boxes.

In the suit, Turner claims the three antispam organizations are "sinister entities" that have conspired to put him out of business by blacklisting his Internet addresses. He says the organizations faked many of the complaints received by Qwest and CoVista, use phony names and addresses, and received donations from AOL and MSN in return for ignoring those large ISPs' efforts to send their own unsolicited commercial e-mail.

"They have their own set of rules which have no basis in law," Turner claims in a written statement. "They threaten to blacklist anyone they do not like or who has not worked out a "deal' with them. They hide their identities, refuse to give their true locations, or addresses, [and] generate fake complaints."

Of the three organizations, only Spamcop forwards complaints to ISPs or solicits donations. Julian Haight, president of Seattle-based Spamcop, admits it's possible someone faked the complaints, "but they'd have to be very smart geeks to forge the e-mail headers well enough to fool us." He also says his organization has never received money from any major ISP and does not engage in reciprocal deals, noting that Spamcop recently blacklisted AOL for a few hours after a series of spam complaints.

Spamhaus.org director Steve Linford says it's highly unlikely that anyone sent fake complaints, given that it's possible to easily verify e-mail messages by checking the logs at the ISP from which they're sent. Rather than hide from spammers, Linford has posted explicit instructions on how to locate him on the news.admin.net-abuse.email newsgroup.

Linford adds that Opt-In Marketing might get more than it bargained for. "If a spammer sued us we'd go straight for discovery, find out their real names and addresses, and forward that information to the FTC and their state attorney general," he says.

SPEWS, an anonymous organization whose whereabouts are unknown, could not be reached for comment.