Virginia prosecutors yesterday compared a North Carolina man on trial for violating the state's anti-spam law to a modern-day "snake oil salesman" who masked his electronic identity last summer to send tens of thousands of fraudulent e-mail advertisements to America Online subscribers.
During closing arguments in what state prosecutors have called the nation's first felony prosecution of spammers, Assistant Attorney General Russell E. McGuire told Loudoun County jurors that Jeremy Jaynes, with the help of two co-defendants, illegally misrepresented the origin of e-mails that peddled software products and low-priced stock pickers.
"It's equivalent to a telemarketer's using your caller ID," McGuire said.
In response, defense attorneys said the state had presented only circumstantial evidence that was not compelling enough to convict the defendants.
Jaynes and co-defendants Jessica DeGroot and Richard Rutkowski, also of the Raleigh area, allegedly falsified or forged their return Internet addresses to transmit more than 10,000 unsolicited bulk e-mails, or spam, on three dates in July 2003. If convicted, each could face up to 15 years in prison and $2,500 in fines.
The trial is being held in Loudoun County Circuit Court because the e-mails allegedly went through a server belonging to America Online Inc., which is based in the county. Prosecutors said evidence seized in Jaynes's Raleigh, N.C., home indicated that he ran an elaborate spamming business. That evidence included computer disks containing 84 million AOL e-mail addresses and e-mail history logs showing that a computer found at Jaynes's home had been used to attempt to send e-mail ads.
McGuire also argued that a note found at Jaynes's home was written by Jaynes and outlined each defendant's duties in the spam business. He said it indicated that DeGroot was responsible for uploading lists of e-mail addresses and that Rutkowski was responsible for regularly changing the Internet addresses -- also known as IP addresses -- of the e-mails they sent.
"There's no need to change your IP," McGuire said. "If you're doing legitimate business with people, you want them to remember your IP."
Defendants can be convicted of violating the law if the jury finds that they assisted or encouraged the illegally sending of spam, even if they did not send it themselves. Prosecutors said DeGroot and Rutkowski played those kinds of supporting roles, but attorneys for both said the evidence prosecutors presented -- including a credit card in DeGroot's name and a mailbox registered to Rutkowski -- did not prove that they knew about any illegal spamming.
"Every person in the Enron Corp. doesn't get indicted just because they're investigating the president," said Thomas Mulrine, DeGroot's attorney.
The state was able to file three felony counts against Jaynes, DeGroot and Rutkowski because during three dates in July 2003, more than 10,000 AOL e-mail account holders pressed a "report spam" button after receiving e-mail allegedly sent by the defendants. But David Oblon, Jaynes's attorney, argued that the state did not prove that those people did not want the e-mail ads.
"Out of a total of 55,473 people, the government did not call a single person to the stand to testify that the e-mail they received was unsolicited," Oblon said.