If yahoo sued them? I don't see why it wouldn't. It may not convince an expert witness, but why wouldn't it convince a jury?
Yeah, good point. I guess I was feeling unnecessarily cynical.
If I were on the jury, I'd definitely buy it. Their counsel would have to really bone up the argument that it was such equal treatment, they were flagging their own messages. And the prosecution would have to really stretch things, probably entering into conspiratorial territory in order to make a case.
Then again, I've found myself perplexed by jury decisions on tech-related cases more than once. Although having sat on a jury, I can see how such decisions might be made.
"Your honor, clearly you can see that our services are so impartial as to flag our own email..."
Something tells me that probably wouldn't work.