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Jail term for spammer raises legal questions

The "Buffalo Spammer" will pay a heavy price for the junk e-mail operation he ran, but it wasn't the Can Spam Act that took him down. And some legal experts wonder if a conviction under the new antispam law would stick anyway.

The high profile conviction and sentencing of the infamous "Buffalo Spammer" has left at least one intellectual property lawyer questioning the constitutionality of the newly enacted Can Spam Act and similar laws.

Howard Carmack, who sent 850 million junk e-mails through accounts he opened with stolen identities, was sentenced to up to seven years in prison last Thursday after being convicted in March of forgery, identity

Howard Carmack was not really convicted of spamming, he was convicted of fraud and a few other related matters.

Marvin Benn, attorney,
theft and falsifying business records.

The criminal charges against Carmack stemmed from a lawsuit filed by Atlanta-based Internet service provider EarthLink, in which the company sought to close down a spam operation he reportedly ran in Buffalo, N.Y.

The man who came to be known as the "Buffalo Spammer" was subsequently found guilty of defrauding EarthLink and eight men from New York, Ohio and Washington, D.C.

In May, EarthLink also won a $16.4 million civil judgment against Carmack, whom the company said used 343 illegal e-mail accounts to bombard people with unsolicited e-mail ads for sexual enhancers and get-rich-quick schemes.

Conviction for fraud, not spam

Carmack was not found guilty under the Can Spam Act, but nevertheless, the case has people talking about the effectiveness and even the legality of antispam laws.

"Howard Carmack was not really convicted of spamming, he was convicted of fraud and a few other related matters," said Marvin Benn, and intellectual property attorney with Much Shelist P.C. in Chicago. "You don't see that he was hit under the spamming statutes, and I don't know if you will see that."

Benn explained that it might be difficult to legally convict someone of spamming under

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the Can Spam Act and other state and local antispam laws, especially if that person lives outside of the state in which they are accused.

Under the U.S. Constitution, for a state to hold someone criminally responsible for a crime, there needs to what is known as "minimum contacts." This means that the accused has to have some kind of presence in the state in which they are convicted, Benn explained.

If a spammer does nothing more than send mass e-mails to people in a particular state, it might not be enough to show minimum contacts, Benn said. Without minimum contacts, the attorney said, it would be unconstitutional to convict a spammer.

Meeting the legal standard

On the other hand, he said, if it can be proved that the accused either lived in the state in which they are being prosecuted, or sold a significant amount of products in that area, then a conviction would stand.

"If, in fact, there is activity in that state that is interactive and you can buy and sell, then there will be jurisdiction, but most of these slammers are just sending things," Benn said.

The federal Can Spam Act went into effect Jan. 1, after being signed into law by President Bush. The law stipulates that people who send commercial e-mails with deceptive subject lines -- or those who spoof sender addresses -- can be punished with prison terms. It also gives the Federal Trade Commission new enforcement authority and the option to set up a national "do not spam" registry.

Since their inception, people have questioned the effectiveness of laws designed to curtail unwanted e-mail. Many say the problem with the laws is that they are virtually unenforceable because spammers take significant measures to conceal their identities, and many live overseas.

Some see a deterrent value

Jake Jacoby, CEO of Singlefin Inc., a San Diego-based e-mail protection and management company, said he thinks antispam laws won't work in terms of convicting criminals. But, he said, they might cause potential spammers to think twice before sending junk e-mail.

Singlefin processes e-mail for a little more than 6 million end users, Jacoby said. That amounts to between a 500 million and 1 billion pieces of spam per day.

"We currently see about 80% to 90% of that traffic on any given day is junk," Jacoby said. "Two years ago it was about 20% to 30%."

The "Buffalo Spammer" definitely won't get any sympathy from Anita Colmie , the chief financial officer of the San Diego-based venture capital firm Idanta Partners Ltd.

Colmie, who works closely with her company's IT department, said she has received just about all the spam she can take. The CFO thinks spammers should definitely receive jail time for their offenses.

Before her company implemented a comprehensive antispam filter, Colmie was personally receiving about 300 unsolicited e-mail ads per day. "We got so much spam that is was amazing," she said. "It really interfered with my work."

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