A federal judge rejected a plea bargain for former America Online software engineer Jason Smathers because, the judge said, he was not convinced Smathers had actually deceived anyone, as CAN-SPAM defines it.
“Everybody hates spamsters, there’s no question about that,” said U.S. District Judge Alvin Hellerstein, in setting a January 28 hearing for Smathers in the matters. “[But] I need to be independently satisfied that a crime has been created.”
Hellerstein ordered prosecutors to file a brief by January 12 explaining just why Smathers, who is accused of stealing millions of email addresses and selling them to spammers, can be prosecuted under CAN-SPAM, and especially why Smathers’ activities were not just fraudulent but deceptive.
As a result, Smathers no longer faces a potential 18 months to two years behind bars and fines, under the plea bargain he worked out with prosecutors on charges of conspiracy and interstate transportation of stolen property.
Not even Hellerstein’s own spam problem – the judge was quoted as saying he dropped his own AOL membership because he was getting too much spam – could sway him. “[B]illions and billions of unsolicited emails [go to] people like Your Honor” thanks to Smathers, federal prosecutor David Siegal was quoted as telling the judge in urging him to accept the plea deal.
Smathers’s attorney, Jay Goldberg, told reporters Hellerstein didn’t question CAN-SPAM or its constitutionality, merely whether the law’s standard of deception actually applied to Smathers.
Smathers is accused of using another AOL employee’s access code to steal a list of 92 million AOL email addresses, including multiple addresses used by AOL customers, and selling the list for $100,000 to Las Vegas spammer Sean Dunaway.
Dunaway, in turn, is accused of using that list to flush unwanted gambling ads to AOL subscribers and of selling the list, in turn, to spammers using it for porn, jewelry, prescription drugs, and other goods and services.
