Pro se Plaintiff and Comcast subscriber filed a lawsuit against TRUSTe, Microsoft, and Cisco Systems for blocking all of Plaintiff’s emails on at least two separate dates. Plaintiff called Comcast the first time and filed a complaint with TRUSTe the second time. Comcast claimed that it had received the blocking information from Cisco’s Ironport service. TRUSTe held against the Plaintiff in his complaint where he argued that Comcast had not sufficiently explained the reasons for blocking his outgoing email. Plaintiff had also filed a complaint against Microsoft for placing Plaintiff on its Frontbridge IP address blacklist on two previous occasions. Microsoft had not licensed Frontbridge through TRUSTe; therefore, TRUSTe did not render a decision on that complaint. Thus, the Plaintiff brought a pro se claim against all parties that included eight causes of action.
The court ended up dismissing the breach of contract claim against all parties. The court summarily dismissed the breach of contract claim against TRUSTe simply because “it is blackletter [sic] law that a gratuity without consideration does not form a contract.” Without the contract, the Plaintiff’s breach of contract claim went nowhere.
In addressing the breach of contract claims against the three remaining parties, the court had to consider whether their privacy policies were enforceable as contracts. Comcast, Cisco, and Microsoft argued that their privacy policies are insufficient to form a contract “because they are not definite and no consideration was given.” In his complaint against Comcast, the Plaintiff pointed to the Comcast Customer Privacy Notice regarding Comcast’s ability to block and filter spam email and the methods involved. The court held that the Notice was a part of the contract and examined other cases in the area that held that privacy policies could form part of a contract.
The court then went on to dismiss the breach of contract claim against Cisco and Microsoft. There, the Plaintiff was unable to prove that there was a contract between himself and Cisco and Microsoft simply by pointing to their privacy policies. Furthermore, the Plaintiff did not complete the offer, acceptance, consideration triangle of contract formation to show that the privacy policies were a part of his contracts with the two companies. In fact, Microsoft and Cisco did not owe any contractual duties to the Plaintiff, but instead to Comcast, to whom they supplied the blacklist information.
In sum, the court’s holding on the issue of privacy policies are certainly not groundbreaking. However, it adds to the current discussion about role of privacy policies in contract formation.
You may also find Eric Goldman’s comments regarding the application of 47 USC 230 and this case here.
The case is Smith v. Trusted Universal Standards in Electronic Transactions, Inc., 1:09-cv-04567 (D.N.J. May 04, 2010). Note that the Plaintiff accidentally named the TRUSTe (True Ultimate Standards Everywhere Inc.) with Trusted Universal Standards in Electronic Transactions Inc.