US judge refuses to accept guilty plea on spam

NEW YORK - A federal judge has refused to accept a guilty plea from a former America Online employee accused of selling the internet provider's customer list to a "spammer," saying he was unsure a crime had been committed.

US District Judge Alvin Hellerstein stopped a hearing at which Jason Smathers was to plead guilty to conspiracy and interstate trafficking of stolen property, saying he had a "technical question" about the alleged crime.

At issue, the judge said, is whether the actions rose to the level required by a new antispam law, which states that spam must be not only annoying but deceptive. Spam is the term widely used for unsolicited commercial emails, often hawking products to combat sexual dysfunction or promote weight loss.

"Everybody has spamsters, but mine is a technical question," the judge said. "I don't think it's deceptive or misleading to the recipient."

The judge, who said he once used AOL but quit the provider because of the amount of spam he received, asked prosecutors to submit a legal brief by Jan. 12 with more information.

The judge also set a hearing for Jan. 28 at which time he could decide to accept the plea.

"I need to be independently satisfied that a crime has been committed," he said.

The case by federal prosecutors charges that Smathers, of Harpers Ferry, West Virginia, stole a list of 92 million customer screen names from AOL, a Time Warner Inc. unit, and sold it to an internet marketer.

The marketer then allegedly used the list to promote his online gambling operation and sold the names to other spammers, according to prosecutors.

Smathers, 24, faces up to 15 years in prison on charges of conspiracy and interstate trafficking of stolen property, but was expected to receive a sentence closer to 18 to 24 months.

After the hearing was unexpectedly cut short, an attorney for Smathers said "everything has been thrown open now" by the judge's refusal to accept his client's plea.

"This is a new statute," the attorney, Jay Goldberg, said. "He is questioning whether the conduct here met the standard of deception."

- REUTERS