TELECOM Digest OnLine - Sorted: U.S. Judge Refuses to Accept Guilty Plea on Spam

U.S. Judge Refuses to Accept Guilty Plea on Spam

Lisa Minter (
Tue, 21 Dec 2004 23:26:04 EST

NEW YORK (Reuters) - A federal judge on Tuesday refused to accept a
guilty plea from a former America Online employee accused of selling
the Internet provider's customer list to a "spammer," saying he was
unsure a crime had been committed.

U.S. District Judge Alvin Hellerstein stopped a hearing at which Jason
Smathers was to plead guilty to conspiracy and interstate trafficking
of stolen property, saying he had a "technical question" about the
alleged crime.

At issue, the judge said, is whether the actions rose to the level
required by a new antispam law, which states that spam must be not
only annoying but deceptive. Spam is the term widely used for
unsolicited commercial e-mails, often hawking products to combat
sexual dysfunction or promote weight loss.

"Everybody has spamsters, but mine is a technical question," the judge
said. "I don't think it's deceptive or misleading to the recipient."

The judge, who said he once used AOL but quit the provider because of
the amount of spam he received, asked prosecutors to submit a legal
brief by Jan. 12 with more information.

The judge also set a hearing for Jan. 28 at which time he could decide
to accept the plea.

"I need to be independently satisfied that a crime has been
committed," he said.

The case by federal prosecutors charges that Smathers, of Harpers
Ferry, West Virginia, stole a list of 92 million customer screen names
from AOL, a Time Warner Inc. unit, and sold it to an Internet

The marketer then allegedly used the list to promote his online
gambling operation and sold the names to other spammers, according to

Smathers, 24, faces up to 15 years in prison on charges of conspiracy
and interstate trafficking of stolen property, but was expected to
receive a sentence closer to 18 to 24 months.

After the hearing was unexpectedly cut short, an attorney for Smathers
said "everything has been thrown open now" by the judge's refusal to
accept his client's plea.

"This is a new statute," the attorney, Jay Goldberg, said. "He is
questioning whether the conduct here met the standard of deception."

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