Federal Judge Refuses Spam Guilty Plea

Jeff Berg
NEW YORK — A federal judge rejected the guilty plea of a former America Online employee who allegedly stole nearly 100 million email addresses and sold them to spammers, saying that he wasn’t sure the employee had actually committed a crime.

The Tuesday hearing in which Jason Smathers had agreed to plead guilty to conspriracy and interstate trafficking as part of a bargain with federal with federal prosecutors was halted after U.S. District Judge Alvin Hellerstein said that he had “technical questions” about the nature of the crime.

Hellerstein, who also mentioned that he had canceled his AOL account after receiving massive amounts of junk email, said he was unsure about whether Smathers actions were actually in violating of the Can-Spam act, which requires that spam be both annoying and deceptive.

“Everybody has spamsters, but mine is a technical question,” said Hellerstein. “I don’t think it’s deceptive or misleading to the recipient.”

Hellerstein then asked prosecutors to submit legal briefs by Jan. 12 so he could decide on whether Smathers was in violation of the law.

“I need to be independently satisfied that a crime has been committed,” the judge said.

If convicted, Smathers could face up to 15 years in prison, but the deal he cut with prosecutors would leave him with a potential prison term of 18 months to 24 months.

The Can-Spam Act, passed by the legislature in 2003 in response to mounting concerns about the quantity of junk email transmitted over the Internet, prohibits unscrupulous email marketing. Provisions of the act make it illegal to send email with the intent to deceive or mislead recipients about the origins or subject matter of the messages, and neglecting to state in the subject header whether the email contains pornographic material.

While Hellerstein is not questioning the constitutionality of the law itself, his questions echo similar concerns expressed by U.S. lawmakers when the bill was passed in November 2003.

“The bill doesn’t can spam, it legalizes it,” Debra Bowen, a Democrat state senator in California told the New York Times at the time. “It’s full of loopholes. It’s difficult to enforce. It’s weaken than many state laws.”

Before the act’s passage, eight state attorneys general who sit on the Internet committee of the National Association of Attorneys General wrote a letter to the legislature, saying that the Can-Spam Act “creates so many loopholes, exceptions and high standards of proof, that it provides minimal consumer protections and creates too many burdens for effective enforcement.”

The next hearing in the case is scheduled for Jan. 28.