- The Washington Times - Tuesday, December 21, 2004

NEW YORK (AP) — A federal judge yesterday refused to accept a guilty plea from a former America Online software engineer accused of stealing 92 million e-mail addresses and selling them to spammers.

Judge Alvin Hellerstein of Manhattan federal court said he was not convinced Jason Smathers, 24, had actually committed a crime under new federal “Can-Spam” legislation that took effect earlier this year.

Mr. Smathers of Harpers Ferry, W.Va., planned to enter guilty pleas to charges of conspiracy and interstate transportation of stolen property. But the judge turned him away and scheduled another hearing for January.

Under a plea deal worked out with federal prosecutors, Mr. Smathers faced a potential prison term of 18 months to two years, plus fines.

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

Federal prosecutor David Siegal urged the judge to accept Mr. Smathers’ guilty plea, saying “billions and billions of unsolicited e-mails” had been sent to “people like your honor” because of Mr. Smathers’ conduct.

“Everybody hates spamsters, there’s no question about that,” Judge 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.”

Mr. Smathers’ attorney, Jay Goldberg, said the judge did not appear to be questioning the constitutionality of the Can-Spam law itself, which took effect Jan. 1.

“He is questioning whether the conduct here met the standard of deception,” he told reporters outside court. Mr. Smathers himself declined comment.

Authorities said Mr. Smathers, who was fired by AOL in June, used another employee’s access code to retrieve the list of AOL customers in 2003 from its headquarters in Sterling, Va., and sold it to spammers for more than $100,000.

The Can-Spam legislation, modeled after the government’s popular do-not-call telephone list, is designed to cut down on unsolicited e-mail hawking products from Viagra to home mortgages.

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