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."

Comments

Re:Does not compute

[The Only Druid]

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.

Re:Theft / Invasion of Privacy

[The Only Druid]

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.

The Law versus Justice

[geekwench]

(Obligatory disclaimer: IANAL)

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.

Did the Prosecution Let Smathers Slip Away?

[BMcWilliams]

To make matters even more confusing, Smathers originally signed a document, available here, in November saying he agreed to plead guilty to violating 18 USC 2314, Interstate Transportation of Stolen Property. (To this legal sparrow, that seems like an appropriate charge.)

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.

Re:Does not compute

[The Only Druid]

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.