Defending Harsh Sentences for Spammers

BMcWilliams writes "Russell McGuire, one of the government lawyers who prosecuted spammer Jeremy Jaynes, has published an article justifying the tough sentence recommended by a Virginia jury. He writes, 'the defense attorney argued that greed cuts both ways and the victims got what they deserved because they were trying to get rich quick. Needless to say, this did not go over well with the jury.' Still, the eye-popping 9-year sentence has even some ardent anti-spammers wondering whether 'proportionality is becoming a completely forgotten concept.'"

Comments

first post?

[zzmejce]

And what is the defense attorney e-mail address?

Zoo mentality

[Anonymous Coward]

It doesn't need to be said that you can get off with a lighter sentence for killing someone. This just goes to show that we're too quick to lock people in cages these days. Why not have them give back to the community or something constructive?

Re:Zoo mentality

[Moraelin]

I don't know, it seems to me like it's justified nevertheless.

1. Although I find it an inherently cold and heartless thought, we put a price in dollars on a human life all the time. Compare the losses caused by a spammer to that, and it's quite easy to end up higher than the cost of a life.

No, I'm not talking "but a second to delete a spam message costs nothing!" Even then, time is ultimately money. (E.g., you pay over $1000 for a faster computer, yes, to save time. And how many of those upgrades are ultimately just to be able to run an even slower antivirus, spyware killer, etc? That's money costs inflicted by the spammers upon society.)

I'm also talking lots of other effects, such as the cost incurred to companies and individuals to maintain all those spam filters. The IT costs of preventing and cleaning with viruses that exist only to install spam zombies. Costs incurred to ISP's and companies just to deal with the bandwidth and storage used up by spam _and_ all those viruses trying to install spam zombies. Costs related to false positives. (E.g., a missed business opportunity because an email from a legitimate business partner was filtered out.)

Plus the insidious cost of having a valuable communication resource plundered and turned into a worthless wasteland. Whereas we all used to gladly read and answer emails from strangers (e.g., questions about my walkthrough for a game, some yes, including attached pics of where they got lost), nowadays an email from a stranger is most likely to be junked without reading. Doubly so if it contains an attachment of any kind.

I also used to freely give my email address to everyone. Nowadays if someone did that, you'd call them an idiot clueless (l)user. Nowadays if you must enter an email address, it's some black hole account just supposed to be a garbage bin for spam.

All this is not just business opportunities, but literal pollution of a valuable resource, and it affects hundreds of millions of people. Even if you put a 1$ price on that resource for each user affected, you easily end up with a monumental loss that those spammers caused to society.

Yes, higher than what we currently price one life at. Cynical, but true.

2. My favourite example: I think of it not in dollars, but in seconds. A murderer has shortened someone's life by, say, 20 years. And we can execute him for that.

Now let's look at spam. Let's say 100,000,000 users receive spam. Let's also say each user is only robbed of 1 minute per day dealing with spam, installing and updating spam filters, de-installing spam zombies, etc. (Just spending an hour on that software every 2 months, already uses up that 1 minute per day quota. So not unrealistic.)

That means in just 2 months, those users have been robbed of 100,000,000 hours out of their lives! That's 4166667 days! Or more than 100,000 YEARS!

So we can execute someone for stealing 20 years out of someone's life, but you think 9 years in prison is too much for robbing 100,000+ years from us all? Seems to me like it's equivalent to more than 5000 murders. People have been hanged tried as war criminals and mass-murderers for far less than that.

So au contraire, I think the fucktard got off disproportionately lightly. If there was justice and keeping the punishment proportional, a spammer would need to die a thousand deaths. (Which, unfortunately, is impossible anyway.)

Re:Zoo mentality

[VistaBoy]

I really hate the recent common mentality that it's tolerable for convicts to be "butt-raped" in prison as a punishment. Especially when our President constantly mentions that our military freed Iraq from "rape rooms." Why are people tolerating rape as a punishment for crimes? Why is the public not only allowing, but ENCOURAGING a loophole around the Eighth Amendment?

Re:Zoo mentality

[pe1rxq]

A sentence should for rehabilitation, not revenge.
In 9 years (especially in a US prisson) they will not be rehabilitated, they will be angry, pissed off, without a future. They won't fit into society and be good citicens, much more likely they will have been pushed over the edge mentally and commit far worse crimes.

Re:Zoo mentality

[CountBrass]

I call bullshit.

Whilst I agree 9 years for a first offence of spamming (assuming no fraud/attempted fraud) is over the top.

However, a sentence serves 4 purposes: First and foremost it's about punishment. Second it's about convincing the victims and society they've been punished: so they don't feel the need to take the law into their own hands, and so that they can move on. Thirdly it's about proecting society: both the individuals and the collective group. And fourth, by a big margin, it's about rehabilitation.

Re:Zoo mentality

[3terrabyte]

Not to mention the huge conservative Christian community that helped Bush into office because of their fear (or possibly valid religious beliefs) against Gay Marriage.

The same homophobic people will then turn around and chuckle at the thought of men raping men in prison. It's got to stop. That is not the punishment that judges hand out, but it is definately one that gets handed out in all serious prisons.

Contribute to ridiclulous levels of spam

[Shnizzzle]

and go to jail for nine years. Drive a car drunk, sell crack, or commit rape and serve far less (or even any) time. I love this country.

Re:Contribute to ridiclulous levels of spam

[onion2k]

Just goes to show the punishment for drunk driving, selling crack and rape are too lenient, not that the punishment for spam is too harsh.

Re:Contribute to ridiclulous levels of spam

[Hatta]

Just goes to show the punishment for drunk driving, selling crack and rape are too lenient, not that the punishment for spam is too harsh.

the USA already incarcerates a greater proportion of its population than any other nation in the world because of sentencing practices harsher than any other industrialized country. If prison actually prevented crime we should have a low crime rate, but no, we have more crime than any develpoed nation.

Punishment fitting the crime?

[BobSutan]

Proportionality be damned. They're out for blood and need to make an example of him. What I have been wondering is why spammers even need to spend time in jail. Wouldn't a large fine be in order and serve the same purpose? Do we really need more non-violent criminals crowding up our jails and costing taxpayers even more money?

Re:Punishment fitting the crime?

[Anonymous Coward]

No.

Fines don't work. When you are a professional scammer and thief, this is just the cost of doing business. Its just like thugs that work certain neighborhoods have to pay a percentage to the local mob boss.

And there are no debtors prisons in the US. If he moves his operations overseas, while still maintaining a residence in the US, the money is more or less untouchable...he'll just declare bankruptcy and move to a state that doesn't allow forclosure of primary home and vehicle for bankruptcy and drive a Hummer to his quarterbillion house and be out of reach of the authorities.

Prison sentences are the only way to go. The guy knew it was wrong and choose to do so anyways. For that, jail time is appropriate. 9 years in jail? Maybe over the line, but then again, he knew the risks...if I was told if I spit on a sidewalk I'd go to prison for life, I'd be sure not to spit on the sidewalk (or be prepared to take the consequences for doing so).

Spam equivalent to rape?

[brandonY]

Rape is usually about 5-20 years, isn't it? I agree that 9 years is a little extreme for spamming.

The problem with our society is that we can't figure out a better way to punish people than to put them in jail for a decade or so and let them think about what they did. We're not quakers, for the love of God. Why can't we just:

1.) Take all the money paid to him for spamming,
2.) Fine the companies that paid him to spam, give as much of that money back to the gullible suckers as we can, and
3.) Give him 50 lashes and tell him he's not allowed to use email for 5 years.

Re:Spam equivalent to rape?

[Kombat]

I agree that 9 years is a little extreme for spamming.

The sentence wasn't just for spamming. Think of it as a fraud case, not a spam case. The guy was sending his own fraudulent emails, taking peoples' money, and not delivering.

Why can't we just:

1.) Take all the money paid to him for spamming,

Because much of it may be already spent on things you can't get back (traveling, gambling, fancy hotel rooms, meals, liquor), or hidden away in offshore accounts. You can never conclusively determine exactly how much money he scammed off of people.

2.) Fine the companies that paid him to spam,

Because as I said, he wasn't spamming for anyone but himself. He was spamming his own porno websites, and his own fraudulent "get rich quick" scams.

3.) Give him 50 lashes and tell him he's not allowed to use email for 5 years.

Think of him in the same league as the Enron/Worldcom/Tyco/Bre-X execs that defrauded shareholders out of millions of dollars. He's not some little two-bit spammer, he's a fraudster, seeking to routinely rip-off unsuspecting consumers. 9 years is what he deserves, and I hope he serves every last day of it in some federal, PMITA-prison, with no parole.

Also consider

[koi88]

Last week my neighbour's brat rang my door bell then ran away.
I demand at least 5 years in prison as it's not the first time he did that and I'm not the only victim.

Should have been more

[geoffspear]

The spammers in this case comitted many counts of fraud. If they'd been charged with that (which probably would have been a tougher case to make than proving they'd sent emails that hid their identity), they probably would have gotten a much longer sentence. Everyone, the spammers included, should be happy that the prosecuters decided to make an example of them for spamming instead of putting together a solid fraud case with a few thousand consecutive sentences.

9 years in Folsom, or minimum security?

[davejenkins]

1. Is this nine years in Supermax/leavenworth breaking rocks, or is it nine years in white-collar minimum security for dysfunctional mob accountants?

2. Certainly the criminals can get out earlier with good behaviour.

3. Porportionality, and the excess thereof, is the entire basis behind "prison" as a concept: we try to make that destination deplorable enough to try and discourage certain behaviours that society deems as "crimes".

4. These bozos made the mistake of committing a crime where the jurors themselves were also victims (indirectly). Stupid. Very, very stupid.

Re:Proprotionality

[cbogart]

Seems like the courts could come up with some estimate of costs imposed by spamming -- how many hours do how many people spend "hitting delete" or installing and maintaining spam filters; what's the cost of the bandwidth needed to carry it nationwide. Then figure out what proportion of that this spammer was responsible for, and you have an estimate of how much value he stole from people.

Why not fraud

[Pedrito]

It was pretty clear from the article that these guys were also guilty of fraud. They had a 30% chargeback rate and from the description of what was involved in the chargebacks, I'm surprised 30% were that persistent.

I'm curious why fraud charges weren't stacked on top of all this.

I'm not complaining. 9 years for spamming. I just hope this guy isn't the last. I really want to see them go after as many of these guys as they can. Going after 1 isn't much of a deterrant. Going after dozens could be. It's not like there are as many big-time spammers as there are file sharers. You don't have to get that many convictions to start scaring them.

Yes, "proportionality" is long dead

[MattW]

Wasn't it obvious? People get charged with jaywalking, conspiracy to jaywalk, purchase of running shoes with intent to jaywalk, reckless jaywalking, disregarding traffic signals with intent to jaywalk, and end up pleading down to "just" a year.

"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them." - Ayn Rand

Not that spammers don't deserve jail time, but realize that we're quickly approaching a stage where everyone is guilty of something.

Re:One word: deterrent

[Ubergrendle]

The concept that harsh punishments act as a more effective deterrent than 'strong chance of being caught' with a minor fine has been disproven time and again. You'll learn this in any 101 Psychology or Criminal Law or Sociology course pretty much.

As much as I hate spam, I would much rather see the man bankrupted, or seriously fined than server ANY jail time. At no point has my quality of life or personal safety ever been threatened by spam. Incarceration should be an option of last resort.

I find it funny that most slashdotters will cry foul at ~any~ type of fine for file trading or uncapping their modems or for warddriving, and then scream for violent dismemberment of someone who sends unsolicited e-mails.

Re:One word: deterrent

[gspeare]

I'd rather see the economic incentives for spam eliminated; as long as they exist, so will spam.

OTOH, knowing that this guy won't be spamming for 9 years is not a terrible thing. I agree that the degree of this crime is lower than many others, but the magnitude seems extremely higher. We should be comparing his sentence to that of a mass murderer or serial rapist.

This is an issue of KNOWINGLY being unethical

[Theovon]

I realize our justice system all about law and completely devoid of ethics, but sometimes the jurys are allowed to inject some sanity. Spammers are FULLY AWARE that they're intruding on millions of people who won't want to be intruded upon. They shouldn't be doing it in the first place.

But then the legal system responds to citizen unrest and develops laws which try to restrict what spammers can do.

NOW, the spammer is flagrantly violating both ethics and the law. They're filling your inbox with thousands of unwanted emails, stealing half the available handwidth in the fastest networks, and costing people inordinate amounts of money, just so the spammer can scam 0.01% of his email recipients. AND THEY KNOW IT.

I think people should be hanged for such flagrant disregard for everyone else on the planet. 9 years in prison? He got off light.

This IS balanced

[Tx]

I see a lot of people saying things like "you do more time for rape and muder, so these sentences are disproportional". But the purpose of the criminal justice system is to try and make people comply with the law, not just to punish them for breaking it. Increasing the sentences for already serious crimes like rape and murder won't significantly affect the likelihood of people comitting those crimes, because of the nature of the crimes. On the other hand, if a crime like spamming is seen as a high-profit, low risk option (slap on the wrist and a fine), the law will be widely broken. It is therefore perfectly reasonable to impose hefty jailtime sentences to make sure spamming is not seen as a low-risk crime. Just my 2 cents.

This is probably a little off topic but...

[StressGuy]

I've often thought that the basic concept of a time based prison sentance was flawed. Other than opportunity for parole, there's really no incentive for rehabilitation with this system. I just breaks down to managing the prison population until it's time to release them back into society.

What if, instead of a time based prison system, we could incorporate a level based system? The further within the system you go, the less priveledges you would have. Instead of years within the system, it would be levels within the system that you must earn your way out of in order to be released. This would also have the effect of causing similar types of criminals to be populated together. The very top level could be something like a "half way house" that would replace the concept of parole. To ultimately earn your freedom, you'd have to have demonstrated your ability to function as a law abiding citizen.

White collar criminals, like our spammer, could also have thier assets taken while they are in prison to make restitution for monetary damages.

The idea needs development I realize, but I think it would emphasize rehabilitation more than a time based system would.

Punishment seems fair...

[mykepredko]

Personally, I would think that the 9 year jail time is "proportional" punishment for a number of reasons:

1. How much time was spent deleting the emails that this guy sent - say it takes a cent an email, everytime he sends out 10M emails, this costs the economy $100,000. So taking that into acount, we can probably say that $50-$100 M is lost to the economy each year.

2. How much has been spent on Spam filters, installation and upgrades? How many billions of dollars per year are spent by businesses, individuals and governments? Let's be conservative and say $100M per year.

3. How much bandwidth has been stolen, proxies illegally set up? What is the cost to individuals, businesses, government - again being conservative let's say $50M per year.

4. I won't even guess at the amount of money that this guy's clients have taken from (dumb) people that respond to the emails.

So, looking at this from this prospective, this guy is a kingpin in a minimum $200M per year scam. It could probably be argued that this guy's contribution to the problem could cost society $200M per year. What do you think is an appropriate punishment for a crime of this magnitude?

Fines for this type of behavior don't work; the spammer will just declare bankrupcy after moving his money to a protected location.

The comparison to the time given to a rapist or murderer is not reasonable. I would expect that the spammer is going to end up in a minimum-security institution. Where a rapist or murderer will end up in a maximum security prison or better. On leaving prison, a rapist/murderer is normally required to register where they are living and will be regularly interviewed by police when there is a crime that is similar in nature to theirs - they can never leave this behind them.

The spammer, if he does change his ways, can lead a new life after prison with it just being remembered as a mistake that he didn't fully understand the consequences to - but at least he try to destroy somebody's life (as a violent criminal would have to live with).

myke

Re:Proprotionality

[walt-sjc]

In my area, we had a guy that raped a 6 year old girl get 2 years, when it should have been life. Another guy that killed someone by running over him with a snowmobile (hit and run, leaving the guy he hit to freeze to death) got 6 months. A woman who wroute a couple bad checks and no prior history got 4 years.

There is a serious problem with sentancing. Criminals with serious offences are getting off light while more minor offences receive serious jail time. I have a problem with this.

In this particular case though, I feel the spammer received an appropriate sentence - maybe a little lighter that I would prefer, but better that the usual nothing.

What everyone seems to miss...

[Presence1]

... is that this is not just unsolicited email, it is FRAUD.

If he was just sending unsolicited email advertising a real product that actually worked, then 9 years would indeed be too harsh. Creating an annoyance, even to many people, should not be punished more harshly than some murders and rapes.

But, he deliberately worked to deceive people in order to steal their money by selling a product that didn't work and that he knew didn't work. This is theft, and when done on such a grand scale ($400K - $700K per month), deserves to be so harshly punished. It could be argued that this is too light, considering the several year sentences typical for car theft.

I'd also be inclined to punish him for stupidity. Having raked in several million dollars in a few months, he should have been long gone sunning himself on a beach in Brazil under a new identity, not sitting around waiting to be busted.

Re:Proprotionality

[Ironsides]

You're forgetting that these guys were also using the spam to sell products that would not do what they claimed they would do. As I undrstand it, they were spamming people to scam them out of money. The nine years isn't just for the spamming, but for selling, as the prosecutor liked to put it, "snake oil".