NZ connection in US spam prosecution

By JUHA SAARINEN

An Australian spam operation with New Zealand connections is one of two cases brought by the United States Federal Trade Commission, under the new Can-Spam Act.

Lance Thomas Atkinson, who lives in Australia, is the brother of Shane Atkinson, the Christchurch spammer exposed by the Herald last year, according to associate and fellow defendant Mike van Essen.

Van Essen and Lance Atkinson are accused by the FTC of being "responsible for massive amounts of spam" through their company Global Web Promotions, based in Western Australia.

The spam advertised "human growth hormone" products that Atkinson and van Essen said could "maintain a user's appearance and current biological age for the next 10 to 20 years", a claim the FTC flatly rejects.

Furthermore, the products sold by Atkinson and van Essen do not contain any human growth hormone, according to the FTC.

The FTC also said it had evidence "of the defendants spoofing a wide array of victims, including AOL, Microsoft Network, and other companies and individuals".

The spoofing is prohibited by the Can-Spam Act and led to undeliverable emails being returned to the innocent victim, often flooding their servers, the FTC said.

As a first step, the FTC has filed a motion with the court to issue a temporary restraining order that bars further spamming by Atkinson and van Essen. The order also stops the sale and shipment of products marketed by Atkinson and van Essen.

The FTC has not worked out the amount of money Atkinson and van Essen made, so the restraining order did not extend to freezing ofassets.

Lance Atkinson is a shareholder of Global Web Promotions, together with his partner, Carly O'Connor, and van Essen's wife, Linda.

Spokeswoman Jackie Maitland confirmed that the New Zealand Commerce Commission was assisting the FTC "in the final stages of this case" but added that it was unable to go into detail on the extent of the assistance.

In an emailed response to a Herald inquiry, Mike van Essen said he had read about the case on the internet but neither he nor Lance Atkinson had been served with any papers yet. He said Atkinson did not wish to talk to the press, and declined further comment until he had spoken to his lawyers.

A search of internet anti-spam groups by the Herald reveals that Lance Atkinson has a history of spamming that goes back several years. He also runs a hosting service for pornographic websites.

Shane Atkinson confirmed that Lance was his brother, and lived in Australia, having moved there five months ago.

However, Shane Atkinson said that although his brother had a mailbox in the same post office as him, they were not working together. Shane Atkinson also denied any involvement with Global Web Promotions.

After he was exposed as a spammer last year, Shane Atkinson found himself at the receiving end of a barrage of public outrage and proclaimed that he would give up spamming.

Asked if he had remained true to his promise, Shane Atkinson said he had.

He claims only to do periodical "opt in campaigns and opt out emails" to his customers but added that he had been "joe-jobbed" - had his address forged into emails - a few times by anti-spammers attempting to shut him down.

Auckland technology lawyer Craig Horrocks said that while it was possible that Lance Atkinson and van Essen were not guilty of extraditable offences and thus would not be subpoenaed, they could still face severe legal consequences.

Horrocks said that if the FTC tried Lance Atkinson and Mike van Essen "in absentia" - without the defendants present - and obtained a conviction against them, travel would be very difficult for both as United States arrest warrants would be issued, and the pair would have to disclose the convictions upon entry to other countries.

Introduced on January 1, the Can-Spam Act took six years of drafting to make it into legislation.

Under the Act, the FTC will introduce further regulations from May 19 dictating that spam of a sexual nature must hsve "sexually explicit" in the subject line and that the email's contents are not displayed immediately on opening the email.

CAN-SPAM ACT

Can-Spam stands for "Controlling the Assault of Non-Solicited Pornography and Marketing Act" and it applies to anyone spamming US citizens and organisations.

Can-Spam specifies that unsolicited commercial email is labelled as such. You must be able to opt out of future messages, and falsification is banned.

The penalties for breaking Can-Spam are up to five years in prison, fines of up to US$25,000 a day or US$8 an email. Spammers' property can also be confiscated.