Can an ISP refuse to deliver legally compliant commercial email messages to the intended recipients?

In White Buffalo Ventures, LLC v. University of Texas, 420 F.3d 366 (5th Cir. 2005), the Plaintiff, White Buffalo, was an online dating service operating several online dating websites, including one that targeted students of the University of Texas (UT). White Buffalo obtained the “non-confidential, non-exempt email addresses” held by UT through a Public Information Act request. White Buffalo used these email addresses to send CAN-SPAN compliant commercial emails to members of the UT community. UT issued a cease and desist letter but White Buffalo refused to comply. As a result, UT blocked all emails originating from White Buffalo’s IP address. White Buffalo sued UT, arguing that the First Amendment and the CAN-SPAM Act precluded UT’s actions.

The Court disagreed and held that the CAN-SPAM Act does not prevent Internet Service Providers (ISPs), in this case UT, from filtering CAN-SPAM compliant commercial emails.

The bottom-line is that non-compliance with CAN-SPAM will probably result in criminal prosecution under SPAM laws and other cyber crime laws, but compliance does not guarantee that an overzealous ISP will deliver the legally compliant emails to its intended recipients.