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Judge Rejects Guilty Plea From AOL Employee
The Hobo writes "Newsday has a story on a New York judge who rejected Jason Smather's guilty plea. Smathers, covered previously on Slashdot, was the AOL employee who stole and sold AOL addresses to spammers. The judge himself apparently cancelled his AOL subscription due to receiving too much spam. While he didn't like what Jason did, he wasn't convinced a crime had been committed under the CAN-SPAM law, which requires that a person be deceived."
exactly, he's charged with "conspiracy and interstate transportation of stolen property" according to the article, which seems to fit the crime ... he used another employees access code which warrants theft ....... maybe we're missing something???
It doesn't matter if its deceptive or fradulent, because the charge was specifically done under a particular law: the can-spam act, which has specific requirements. The judge determined that the charge failed to allege an actual violation of that law.
Essentially, the judge instituted a 12(b)(6) motion, dismissing the suit for failure to state a claim upon which action could be based.
"Stumble before you crawl"
Apparently, the prosecutors didn't believe they could prove those crimes, since the claim doesn't include charges of those crimes. The judge isn't allowed to create charges: the judge can only determine the validity of charges made by the prosecutors.
"Stumble before you crawl"
Recusing is used for when a judge has a personal interest or may have a conflict of interest in the matter. Where does it say anything in the article that the judge has a conflict of interest or personal interest in the matter?
Only it's not a 12(b)(6), which is for civil procedure, it's a 5.1(f).
Unfortunately, there are a couple of different things going on, here. First is the judge's inability to see the poverbial forest for the trees. Second is the ability to prove the merits of the case.
The CAN-SPAM Act is one of the most useless pieces of tripe ever to be bulldozed through Congress, and the reason for this is the list of qualifiers that was written in. The "standard of deception" is one of these items. To actually convict someone under this provision in CAN-SPAM, the spammer would have to send out an e-mail promising "Free Screensavers of Puppies, Kitties, and Unicorns!" that actually redirects to the "Girls fscking Giant Horse C*cks eXXXtravaganza!" website. In saying that the charges did not meet the standard, Judge Hellerstein was factually correct.
Smathers did not decieve the AOL members whose information was sold, nor the spammers who purchased it. The AOL members were not told "Oh, don't worry; I wouldn't _think_ of selling your information for to a bunch of sleazebags," and I'm sure that the spammers were under no illusions about the legality of the addresses they purchased. However, what he did commit was fraud. He defrauded the AOL users, and the company, and fraud is most certainly a prosecutable offense. Trying him under the CAN-SPAM statute seems like a really poor legal strategy.
Personally, I'd love to see the existing laws used more forcefully. And I wouldn't go after the spammers, but after the people who hire them. There are already statutes governing things like mortgage banking, mail fraud, practicing medicine without a license, dispending medications without a license... and very few of the existing laws are used to prosecute the companies that give spammers their raison d' etre. Go after the source, and the flood will ebb.
Doing my level best to piss off the religious right wing...
Dude, read the article or at least the submitted text after the headline. The judge threw the whole thing out cause he doesn't think he can be prosecuted under this law. The guy is going to walk. Besides, why would a judge force a trial over a guilty plea?
Then, on December 2, Smathers was arraigned instead for violating 18 USC 371, Conspiracy to Defraud the US Government. Smathers pled NOT guilty at the arraignment.
Then we have today's proceedings, with Smathers trying to enter a guilty plea, apparently to violating CAN-SPAM.
An "information" documentfiled at his arraignment does suggest Smathers was involved in sending decpetive and misleading spam using the AOL customer list. So maybe there is a CAN-SPAM aspect to this case.
But it really does look like the US Attorney's office was trying too hard to get a CAN-SPAM conviction under its belt.
I know that what I am about to say is considered verboten on /. but, whether you like it or not:
/. would like you to believe, the law has a more expansive notion of stealing than "depriving someone of a particular piece of tangible property." For some fun reading, here's an excerpt from FindLaw that is appropriate here:
The law says intellectual property is property!
You may have theoretical or philosophical issues with this, fine -- but the law is what it is, until it is changed. And the law says IP is property.
And, contrary to what most on
"Intentional theft of trade secrets can constitute a crime under both federal and state law. The most significant federal law dealing with trade secret theft is the Economic Espionage Act of 1996 (EEA) (18 U.S.C., Sections 1831 to 1839). The Act gives the U.S. Attorney General sweeping powers to prosecute any person or company involved in trade secret misappropriation.
The EEA punishes intentional stealing, copying or receiving of trade secrets "related to or included in a product that is produced for or placed in interstate commerce." (18 U.S.C. 1832.) Penalties for violations are severe: Individuals may be fined up to $500,000 and corporations up to $5 million. A violator may also be sent to prison for up to ten years. If the theft is performed on behalf of a foreign government or agent, the corporate fines can double and jail time may increase to 15 years. (18 U.S.C. 1831.) In addition, the property used and proceeds derived from the theft can be seized and sold by the government. (18 U.S.C. 1831, 1834.)
The EEA applies not only to thefts that occur within the United States, but also to conduct outside the U.S. if the thief is a U.S. citizen or corporation, or if any act in furtherance of the offense occurred in the U.S. (18 U.S.C. 1838.) The EEA is a federal criminal statute and is enforced by the United States Attorneys' offices located throughout the country.
Several states have also enacted laws making trade secret infringement a crime. For example, in California it is a crime to acquire, disclose or use trade secrets without authorization. Violators may be fined up to $5,000, sentenced to up to one year in jail, or both. (Cal. Penal Code Section 499c.)"
"That's not even wrong..." -- Wolfgang Pauli
Are e-mail addresses trade secrets?
a) Not known to the relevant portion of the public? E-mail addresses are a form of contact information that are given out by their very design.
b) Does AOLs user list confer some sort of economic benefit on the holder? You could argue this but according to the marketing AOL say they don't sell their user list so in a way they are saying they accept no economic benefit of their user directory.
c) Does AOL maintain reasonable efforts to maintain their user's e-mail addresses private? This is something that could be argued. One the one hand they don't sell their userlist to spammers but at the same time any old Joe can e-mail an AOL user at anytime.
As defined, I can see how one might argue one way or another, but let us ask ourselves this.
1) Is a list of phone numbers a trade secret?
2) Is a list of mobile numbers a trade secret?
3) Is a list of e-mail addresses a trade secret?
There is no sanctuary. There is no sanctuary. SHUT UP! There is no shut up. There is no shut up.
"Take copyright: rightsholders often say that they "own" music, but they don't, and the law is very clear on that. Rather, rightsholders own rights in the music. It's the rights themselves that have "property-like" qualities -- you can own, sell, transfer, &c. a copyright, but you can't "own" a song in the abstract."
If you want to get abstract, then what exactly is "property" anyway? All property is -- ANY property -- is just a "bundle of rights." The right to exclude is just one of the rights associated with "property" -- but show me one place in the law where it says that "property" has to be a tangible item. When you get down to the nitty-gritty, all "property" is is a bunch of rights that the government has given you.
If you own a house, you have a "bundle of rights" that include the right to exclude -- basically, the right to keep people off of your land. But even that right can be trumped by eminent domain, and your right to "exclude" lasts for only so long as you pay taxes on the property.
If someone else can lawfully take something from you, can you really say that you own it? But we associate home "ownership" with ownership of property -- so why not IP?
So, what does "ownership" really mean?
"In fact, that's the basis of the doctrine of first sale: the rightsholder owns the copyright, not the copy of the music (which you own, since you bought it)."
True. But not ALL of the rightsholder's rights are exhausted by the "first sale:" a rightsholder can still (in the case of copyright) control the public performance of THAT particular copy, or the making of a derivative work, or the reproduction.
So, even though you "own" the CD, what you "own" is a bundle of rights, including the right to listen to the music, the right to transfer "ownership," temporarily or permanently, of the CD to another person, the right to destroy the CD, the right to reproduce (as long as you limit yourself to an archival copy under the AHRA), and the right to exclude -- that is, the right to keep someone else from taking your copy.
But you DON'T get the right to publically perform that CD, or create a derivative work, or reproduce the CD (except as noted above). You don't get ALL of the rights. The rightsholders retain SOME of the rights.
That's why it's a mistake to think of property in terms of tangible v. intangible -- it's more proper to think of what "rights" you possess. Typically people associate ownership with the "right to exclude," but there is more to ownership than just that single right.
"Or take patents: if you buy a patented product, like a mousetrap, you've bought a mousetrap. You do, in fact own it. The patent holder has some exclusive rights in the mousetrap, however, such as the right to stop of you from replicating them. The patent holder doesn't own the idea per se, rather he owns rights in the idea."
And those rights give the power to exclude (keep others from building that mousetrap) -- so why isn't that ownership?
"You're completely off base."
Maybe, but I don't think so.
"That's not even wrong..." -- Wolfgang Pauli
Actually, I did make the mistake of not being clear. I was saying "essentially its a 12b6", in that I wasn't sure of the proper criminal reference. My bad.
For those not clear what we're talking about: in the Federal Rules of Civil Procedure, rule 12, subsection B, subsection 6 allows for a motion that a claim be dismissed for failure to state a claim upon which an action can be granted. The criminal analogue is Federal Rules of Criminal Procedure 5.1(f), I believe. Both rules essentially say the following: if ALL the claims of the prosecution are entirely true, there still isn't a valid claim.
"Stumble before you crawl"