Lawsuit Information

Smith v. TRUSTe, Microsoft, Cisco, and Comcast
Originally filed in NJ State Court Cape May County CPM-C-44-09, removed to Federal District Court in
Camden, NJ Civil Action No. 1:09-cv-04567 (Presiding Judge: Kugler, Magistrate Judge: Williams)

The owner of Privacy.net and Network-Tools.com, Russ Smith, has filed a lawsuit against Microsoft, Cisco, Comcast and TRUSTe.  Current activities in the case.

The lawsuit claims that Comcast, Microsoft, and Cisco collected information about Smith’s IP addresses and either put them on a “blacklist” or gave them a poor “Reputation Score.” Comcast even blocked his communication link with a mail server he operates outside the Comcast network. The suit claims that in order to collect this information in the first place Comcast, Cisco and Microsoft violated eavesdropping laws. The suit goes on to claim that Comcast, Microsoft, and Cisco failed to adhere to their privacy policies. When Smith tried to use the privacy policies of Comcast, Microsoft, and Cisco to correct the spammer accusations the companies balked. Comcast even told him it didn’t matter what the privacy policy said, he wasn’t getting the information. He filed complaints with the TRUSTe organization that verifies the privacy policies of Microsoft and Comcast but that did no good.

Previous lawsuits against these “blacklists” have been brought by commercial e-mailers against organizations such as Spamhaus. In this case the accused is not a commercial e-mail, not a spammer, and has no mailing lists of any sort. The accused has even made presentations at the Federal Trade Commission against spammers and testified at the first “Spam Summit” more than 10 years ago.

Microsoft FrontBridge

Microsoft is compiling several IP Address blacklists called “blacklist.zap” via their FrontBridge services. The lists are meant to be used to block e-mail from sources of spam. However, there are many Internet postings that indicate Frontbridge lists many small mail servers. Some complaints came from law firms who need to operate their own mail servers for security and archiving. Many claim they had trouble finding out why they were on the blacklists and how to get removed.

Microsoft told Smith it had logs of the TO: and FROM: fields of e-mails he sent. (Microsoft claims not to have entire e-mails but Internet postings claimed that Microsoft does actually archive entire e-mails and sometimes releases them when pressed). Microsoft never released any of the information to Smith and did not allow him to correct it. A few weeks later Microsoft blacklisted the same IP address again.

A TRUSTe “Watchdog” complaint was filed to enforce the Microsoft privacy policy. TRUSTe claimed the Microsoft privacy policy does not apply by stating: We have determined that the matter does not fall within the scope of our program. We are therefore unable to address your complaint. The link to the main Microsoft privacy policy is for the web site's marketing program…” However, Microsoft claims to the Federal Trade Commission: “[Microsoft Corporation] abides by the standards set forth in … the TRUSTe Privacy Program”

Microsoft has been sued alleging eavesdropping, privacy policy fraud, breach of contract, and defamation. Microsoft is now trying to claim immunity under the Communications Decency Act but they have never produced any “objectionable material.” TRUSTe is being sued claiming they did not reasonably enforce their standards or provide reasonable complaint adjudication.

Comcast

In a separate incident Comcast blocked the complainant from communicating with the e-mail server he operates outside the Comcast network (Port 25 blocking). Comcast said they detected large amounts of e-mail coming from Smith’s home computer. Comcast told Smith that they would not tell him why he was blocked … but if he did it again his account would be permanently blocked. Comcast, at the same time, claims their network management I “protocol agnostic” to please the FCC and their Network Neutrality policy. Comcast will not explain how “protocol agnostic” techniques can result in specific port blocking. Comcast also told Smith that if he signed up for a more expensive business account there would be no blocking. Comcast has not explained how paying for a higher level of service would result in security issues disappearing. Comcast later claimed the entire problem was caused by Cisco who gave the IP address a poor “Reputation Score.” Cisco then blamed SpamHaus.

Comcast has been sued alleging eavesdropping, fraud, and breach of contract. TRUSTe is being sued claiming they did not reasonably enforce their standards or provide reasonable complaint adjudication. As of October 6, 2009 Comcast changed their online privacy policy so that Internet subscribers are not longer covered by the TRUSTe-endorsed Comcast.NET policy, that policy has been moved to the Comcast.COM privacy policy which is not endorsed by TRUSTe. Most people do not realize TRUSTe only licenses specific web sites and not entire companies.

Cisco IronPort/Senderbase

When Smith contacted Cisco about the matter they told him they placed monitoring equipment in thousands of networks across the world. Their Senderbase.org site claims to collect “data on more than 25 percent of the world's email traffic” and SenderBase can be used like a "credit reporting service" for email. Smith claims that Cisco, like any other credit reporting agency, must provide the underlying data for the “Reputation Score” so errors may be corrected. Cisco said they would provide the information but they never did.

Cisco has been sued alleging eavesdropping, fraud, and breach of contract.

Current activities in the case

-Plaintiff asks the court to accept an Amended Complaint HTML | .doc Version | Exhibits A-R | Exhibits S – MM | Exhibits NN – CCC

-Defendants has asked for dismissal of all counts. Discovery is suspended until this motion is decided.

-Plaintiff has asked the court to remand all the non-federal issues back to state court.

-Microsoft introduces Communications Decency Act immunity defense argument at status conference.  However, no "objectionable material" has ever been produced.  Anti-competitive issues have also been raised by Smith since those who pay Microsoft for Frontbridge services apparently don't get blocked.

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