Judge rejects guilty plea in AOL spam case

Tuesday, December 21st 2004, 1:33 pm

By: News On 6

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

U.S. District Judge Alvin Hellerstein said he was not convinced Jason Smathers, 24, had actually committed a crime under the new federal ``can-spam'' law that took effect earlier this year.

The Harpers Ferry, W.Va., man had planned to plead guilty to conspiracy and interstate transportation of stolen property. Under a deal with prosecutors, Smathers faced a potential prison term of 18 months to two years, plus fines.

But the judge turned him 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 under the new law.

Prosecutor David Siegal urged the judge to accept Smathers' 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,'' the judge said. But he added: ``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'' law itself, which took effect Jan. 1.

``He is questioning whether the conduct here met the standard of deception,'' he said outside court. Smathers himself had no comment.

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

The ``can-spam'' legislation, modeled after the government's do-not-call telephone list, is designed to cut down on unsolicited e-mail touting such products as Viagra and home mortgages.