Ex-AOL Employee Guilty in Spam Case

Jeff Berg
NEW YORK — A former America Online employee who allegedly stole 92 million screen names and sold them to spammers finally was able to plead guilty to conspiracy charges on Friday, after his original guilty plea was rejected in December.

Jason Smathers, 24, had his original plea rejected by Judge Alvin Hellerstein because the judge was not convinced an actual crime had occurred.

Smathers now faces between 18 months and two years in prison and mandatory restitution that could range from $200,000 to $400,000, which the government estimates AOL spent dealing with the roughly seven billion unsolicited emails that resulted from the address sale.

Hellerstein, who mentioned during previous proceedings that he had canceled his AOL account after receiving massive amounts of junk email, originally rejected the please because he was unsure whether Smathers had violated the portion of the Can-Spam act that requires spam to be both annoying and deceptive.

“Everybody has spamsters, but mine is a technical question,” Hellerstein had said. “I don’t think [the email in this case was] deceptive or misleading to the recipient.”

During Friday’s proceeding, Hellerstein said prosecutors had given him a sufficient explanation for why Smathers had violated the law.

Smathers was accused of stealing the list of email addresses after he was fired from AOL last June. Prosecutors said that he then sold the list to Las Vegas resident Sean Dunaway, who wanted to use it to promote an offshore gambling website. Smathers said he received $28,000 in exchange for the email addresses.

Charges against Dunaway are still pending.

Hellerstein’s confusion about whether the Can-Spam Act actually had been violated echoed similar concerns express by U.S. lawmakers when the bill was passed in November 2003.

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

Eight state attorneys general who sit on the Internet committee of the National Association of Attorneys General also 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.”

Smathers will be sentenced on May 20.