RE: AOL holes again.

["David Schwartz" <davids () webmaster com>]

> That's a preposterous interpretation.  18 USC 2511(2)(a)(i) says:
>
>       It shall not be unlawful under this chapter for an operator
>       of a switchboard, or an officer, employee, or agent of a
>       provider of wire or electronic communication service, whose
>       facilities are used in the transmission of a wire or
>       electronic communication, to intercept, disclose, or use
>       that communication in the normal course of his employment
>       while engaged in any activity which is a necessary incident
>       to the rendition of his service or to the protection of
>       the rights or property of the provider of that service,
>       except that a provider of wire communication service to
>       the public shall not utilize service observing or random
>       monitoring except for mechanical or service quality control
>       checks.

        You may have a very hard time convincing anyone that rejecting significant
amounts of legitimate mail is necessary. Necessity is a requirement for
exemption under this section.

        Note that service observing and random monitoring are permitted only for
quality control checks. If headers are analyzed to slap up automatic filters
when suspicious patterns are detected, it may be necessary to defend this
practice as a "mechanical or service quality control check". This may be
more difficult than you would expect.

        If automatic spam filtering is considered to be "service observing or
random monitoring" than those who employ it may well face legal action under
this section. Notice that the exception for protection of property doesn't
apply to this category of interception.

        DS