Unauthorized for Two Reasons

The court holds that Cyber Promotions’ access was unauthorized for two reasons.

The first is that, even though CompuServe consented to access to its email system by the general public, it did not thereby consent to every use someone might make of the system. In particular, it prohibited sending unsolicited email. A policy posted on the CompuServe web site contained the following provision:

Compuserve is a private online and communications services company. CompuServe does not permit its facilities to be used by unauthorized parties to process and store unsolicited e-mail.

But what if Cyber Promotions never noticed this policy?

(a) The first reason for thinking that Cyber Promotions was unauthorized depends on the assumption that it was aware, or should have been aware of the above policy.

(b) The first reason for thinking that Cyber Promotions was unauthorized does not depend on the assumption that it was aware, or should have been aware of the above policy.