The Honorable Frank J. Kelley
Office of the Attorney General
Law Building
P.O. Box 30212
Lansing, MI 48909

August 13, 1997

Dear Mr. Kelley,

I would like to draw your attention to the business practices of a
Michigan corporation. I believe these practices are illegal, and
request that you investigate the situation and make a determination
yourself as to their legality.

Apex Global Information Services (AGIS) of Dearborn, MI, is an
Internet service provider (ISP). It sells Internet connectivity to
corporations and individuals across the country, and possibly in other
countries as well. Its corporate offices and most of its important
hardware are located in Dearborn.

One of the companies with which AGIS has a contract to provide
Internet access is Cyber Promotions (CP), a Pennsylvania-based company
engaged in the mailing of unsolicited commercial electronic mail
(e-mail), the sale of software with which to conduct such mailings,
the maintenance and sale of lists of e-mail addresses and other,
related activities.

E-mail sent from CP to Internet users "passes through" AGIS-owned
hardware. That is, the data is transmitted from CP computers, to
computers owned by AGIS, and from there to the ultimate destination. I
do not know if AGIS charges CP a flat fee for this service or whether
there is a usage-based fee schedule.

AGIS claims it has no responsibility as to the content of the
information passing through its systems. I am not aware of any ISP
that has officially received common carrier status, which seems to be
the basis of that claim. Please clarify for Michigan Internet users
and system owners whether an ISP can be, in fact, held responsible for
the content of messages passing through its system.

AGIS does not and should not monitor messages passing through its
system for content. However, after Internet users -- including myself
-- have notified AGIS that their system is being used by CP to
continue sending e-mail to users in spite of repeated requests to
cease and desist, AGIS has refused to block CP's ability to send its
e-mail through AGIS' servers. AGIS apparently makes this refusal on
the basis of its perception of itself as a common carrier. 

Recent court cases, including one involving CP (CompuServe v. Cyber
Promotions), have held that there is no First Amendment right to send
unsolicited commercial e-mail. In fact, Judge Graham's ruling in
CompuServe v. Cyber Promotions held that unsolicited e-mail is a form
of trespass:


[...] this Court holds that where defendants engaged in a course of
conduct of transmitting a substantial volume of electronic data in the
form of unsolicited e-mail to plaintiff's proprietary computer
equipment, where defendants continued such practice after repeated
demands to cease and desist, and where defendants deliberately evaded
plaintiff's affirmative efforts to protect its computer equipment from
such use, plaintiff has a viable claim for trespass to personal
property and is entitled to injunctive relief to protect its property. 


If this holds, then AGIS is, in effect, aiding and abetting CP in its
trespass after having been repeatedly notified of the situation.

CP is not the only bulk e-mailer with which AGIS does business, but it
is the most egregious and serves as an example of the type of business
practices common in the bulk e-mail industry. CP has had its access
revoked at other major ISPs, including Sprint, MCI, America OnLine,
Netcom and others. Almost every ISP has a clause in its Acceptable Use
Policy forbidding the sending of bulk e-mail. Ameriech,for instance,
levies a $1,000 fine on its ameritech.net users who send bulk e-mail. 
AGIS, on the other hand,


[...] has refused to take a "Big Brother" stance by monitoring
and/or censoring its customers' business practices. It has
consistently been AGIS' position that the Internet is an open
marketplace where commerce of any and all kinds may take place in
accordance with public demand.  
(excerpted from AGIS press release dated 4/23/97)


This statement ignores the fact that on the Internet, as in the "real
world," companies must be responsible for the use or misuse of their
property, especially after having been informed of its misuse.

Bulk e-mail works on the same principle as the now-outlawed "junk
fax." It shifts the cost of the advertisement from the sender -- who
pays (usually) a flat fee for Internet access and can send 1,000,000
advertisements for the same price as 1,000 -- to the recipient, who
must spend time and money storing, retrieving and disposing of the
advertisement. Many ISPs are now forced to employ a full-time employee
to deal with the effects of bulk e-mail advertisements and other forms
of cost-shifting advertising online.

In addition, bulk e-mail is generally used to promote products or
services of dubious (at best) legality. According to Eileen Harrington
of the Federal Trade Commission, only two out of 283 pieces of junk
e-mail received at the FTC  in one week were not obviously fraudulent
in some way. It is also not uncommon to find junk e-mail advertising
pornographic World Wide Web sites or phone sex operations -- e-mail
that could easily be opened, read and the directions followed to
access the service by a minor.

Mr. Kelley, I urge you to investigate this matter. I and many others
both in Michigan and across the country are willing to help you in any
manner necessary in such an investigation. This is a very real issue,
one that will have much wider repercussions as the Internet becomes
more and more ubiquitous. Internet users and system administrators
need to have a bright line drawn as to the application of consumer
protection law on the Internet.  

Thank you for your time. I look forward to hearing from you and
helping you with any questions you may have.

(s) John C. Mozena

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