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This page considers selected overseas prosecutions of
spamming.
It covers -
Australian
prosecutions and warnings are discussed in more detail
here, as part of the
note on the Australian and New Zealand spam regimes.
introduction
Pessimism about the prospects for controlling spam at
a global and international level is sometimes based on
perceptions that even the most egregious spammers cannot
be identified, prosecuted and meaningfully punished.
It is thus interesting to see the slow emergence of case
law regarding spam, with successful prosecutions likely
to have some impact in encouraging awareness within particular
jurisdictions and more broadly underpinning international
development.
the UK
In the UK during December 2005 a county court judge in
Colchester ruled against a Scottish-based business in
what is claimed as the first action of its kind under
the EU Directive on Privacy & Electronic Communications.
Channel Islands-based businessman Nigel Roberts sued Media
Logistics UK, a Stirlingshire "electronic direct
marketing" company, after receiving spam email.
He commented that
The
new law gives anyone who is spammed the right to seek
damages against the originators of the unwanted e-mail,
fax or text message. I wrote to the company asking for
an apology and claiming damages under Regulation 30
of the privacy regulations. I also asked under the [UK]
Data Protection Act for details of the data that the
company had obtained and stored about me - and I particularly
wanted to know who had supplied them with my e-mail
address. When they declined to give the information
or make any offer, I issued a claim against them in
England, where they are incorporated, under the anti-spam
laws.
The
company acknowledged the claim but did not defend it,
agreeing to an out-of-court settlement of damages of £270
and the £30 claim fee after the judge ruled in his
favour.
In May 2006 London's High Court ruled that spammers could
be prosecuted under the 1990 Computer Misuse Act,
overturning a district judge's ruling that 18 year old
David Lennon had no case to answer after being accused
of using a computer program to send five million emails
to the firm that had fired him. The judges commented that
although a computer user might consent to being sent some
unsolicited email, that consent did not extend to "receiving
a barrage of such messages".
elsewhere in the EU
In 2004 Danish telco equipment company Aircom was fined
€56,000 in a case brought by Denmark's National Consumer
Agency, somewhat more energetic than its UK counterpart.
The court found that Aircom had breached regulations under
the 2002 EU Directive by sending more than 15,000 spam
emails.
the US
In 2003 district court in Atlanta awarded US ISP EarthLink
US$16.4 million in damages against Howard Carmack (aka
the 'Buffalo Spammer'), a New York resident who had alleged
used illegal means to send over 825 million spam emails.
Carmack was permanently banned from spamming and from
related activities that include selling email addresses.
He had reportedly built a US$24 million fortune and boasted
"Nothing is in my name, so you'll never catch me".
That claim was incorrect and in 2004 he was found guilty
(PDF)
in a separate trial in New York of identity theft, fraud
and falsification of documents (including email header
and sender information). He was sentenced to seven years
in prison.
Jeremy Jaynes, a North Carolina resident, was convicted
in Virginia during 2004 of sending spam with forged
headers via servers located in that state. The decision
reflected Virginian anti-spam law rather than the federal
2003 CAN-SPAM Act.
Spamhaus had characterised him as the eighth most prolific
spammer in the world. He had used different identities
and front businesses for get rich quick schemes and some
particularly unlovely animal pornography spam. Conviction
of his sister and alleged associate Jessica deGroot was
overturned in 2005.
Nicholas Tombros entered into a plea agreement with prosecutors
in a 2004 case under the criminal provisions of the federal
CAN-SPAM Act. He had been accused of sending adult-content
email spam via unauthorised use of unsecured wireless
networks. Tombros allegedly drove through Los Angeles
with a wi-fi laptop sniffing out unsecured residential
access points. He had obtained the email addresses from
working in a credit card aggregation company.
In 2005 Microsoft gained a US$7 million settlement in
an antispam lawsuit against Scott Richter, self-proclaimed
'King of Spam', who had allegedly been involved in distribution
of a mere 38 billion spam messages. Richter had settled
a case brought by New York Attorney General Eliot Spitzer
in 2004.
During the same year AOL disposed of gold bars and a Hummer
H2 vehicle (replete with the numberplate 'CASHOLA') that
were among assets as part of a US$13 million judgment
against New Hampshire spammer Braden Bournival and partner
Davis Wolfgang Hawke, a former neo-nazi. The litigation
was AOL's first lawsuit under the CAN-SPAM Act. In 2006
AOL announced that it would conduct a treasure hunt for
gold and platinum ingots reportedly secreted by Hawke
- inevitably dubbed the Spam Nazi - who defaulted on the
court judgment and then disappeared.
18 year old Anthony Greco of New York was arrested in
2005 for violating the CAN-SPAM Act by allegedly sending
over 1.5 million instant messages advertising mortgage
refinancing services and adult pornography to users of
MySpace.com's IM service.
He had reportedly fraudulently created thousands of accounts
at MySpace and
then sent spim. Bizarrely, he had then allegedly contacted
MySpace.com and demanded exclusive rights to send commercial
email to MySpace.com users.
In 2005 Iowa-based ISP CIS Internet Services was awarded
US$11.2 billion in a court judgment against Miami-based
James McCalla over 280 million email messages sent to
CIS accounts. The spam advertised gambling, adult content,
mortgage and debt-consolidation services. The judgment
also prohibits McCalla from accessing the net for three
years. It follows a separate US$1 billion judgment after
litigation by CIS against three other spammers.
In 2006 24 year old Ryan Pitylak settled lawsuits in US
federal court with the state of Texas and Microsoft. The
settlement cost him at least US$1 million and took away
most of his assets. He admitted sending 25 million spam
messages every day at the height of his activity in 2004.
As part of the settlement with Microsoft, Pitylak promised
to never send "false, misleading or unsolicited commercial
email". Hhe proclaimed, disingenuously or otherwise,
that the experience had been "a serious reality check"
and said that he was
pleased
to announce that I am now a part of the antispam community,
having started an Internet security company that offers
my clients advice on systems to protect against spam.
Pitylak and associates Mark Trotter, Gary Trappler and
Alan Refaeli handed over more than $US10 million.
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