Plea Deal in Spam Case Is Rejected

A federal judge refused to accept a guilty plea Tuesday from a former America Online Inc. software engineer accused of stealing 92 million e-mail addresses and selling them to spammers.

Judge Alvin Hellerstein of U.S. District Court in Manhattan said he was not convinced that Jason Smathers, 24, had committed a crime under federal anti-spam legislation that took effect this year.

Smathers, of Harpers Ferry, W.Va., planned to plead guilty to conspiracy and interstate transportation of stolen property, under a deal with prosecutors.

On those counts he faced a potential prison term of 18 months to two years, plus fines. But the judge turned Smathers away and scheduled another hearing for January.

The judge, who said he dropped his own AOL membership because he received too much spam, said it was not clear that Smathers had deceived anyone -- a requirement of the new law.

David Siegal, an assistant U.S. attorney, urged the judge to accept Smathers’ guilty plea, saying “billions and billions of unsolicited e-mails” had been sent to “people like Your Honor” because of Smathers’ conduct.

“Everybody hates spamsters, there’s no question about that,” Hellerstein said. But he added: “I’m not prepared to go ahead, Mr. Siegal. I need to be independently satisfied that a crime has been created.”

Smathers’ lawyer, Jay Goldberg, said the judge did not appear to be questioning the constitutionality of the Can Spam Act, which took effect Jan. 1.

“He is questioning whether the conduct here met the standard of deception,” Goldberg told reporters outside court.

Smathers declined to comment.

Authorities said Smathers, who was fired by Time Warner Inc.’s AOL in June, used another employee’s access code to steal the list of AOL customers in 2003 from company headquarters in Dulles, Va., and sold it to spammers for more than $100,000.

The Can Spam Act, modeled after the government’s popular “do-not-call” telephone list, was designed to cut down on unsolicited e-mail messages trying to sell products including Viagra and home mortgages.