The Nine-Year Itch

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The jury's stiff sentence underscores the public's hostility toward spam and its readiness to get tough with financial fraud, say observers. In a finding that surprised researchers, a 2000 survey by the National White Collar Crime Center (NWCCC) found the public perceived fraudsters and embezzlers to be more serious than street robbers yet far less likely to be caught and even less likely to be punished severely.

Since then, white-collar crime, including computer crime, has grown tremendously, says Donald Rebovich, who was research director at the time for the NWCCC and now directs the Economic Crime Investigation Program at Utica College in New York. For many, the Internet brings such fraud far too close to home, he says. It's one thing for the public to read about Enron and insider trading; it's another for them to find fraudulent pitches landing in their inboxes. "You could call it democratizing financial crime," says Rebovich.

While the harsh sentence Jaynes was given may have reflected a grass-roots disgust with spam and financial fraud, it was his decision to prey on a much larger entityAOLthat was a major factor in the case being brought to trial in the first place. The online giant enthusiastically supported Virginia's anti-spam statute and supplied extensive technical support to prosecutors. Indeed, AOL headquarters in Dulles served as the host site for Gov. Mark Warner's April 2003 signing of the spam law and for attorney general Kilgore's announcement of Jaynes' arrest in December of last year.

"What distinguishes this case was the victim," says Kent Kerley, a sociology professor at Mississippi State University who studies white-collar crime and sentencing issues. "You finally had a powerful business interest as the victim. When businesses are the victims and not the offenders, thats when sentencing becomes more punitive."

There's certainly no guarantee, however, that Jaynes' nine-year sentence, scheduled to be reviewed at a hearing in January, will serve as a deterrent. In fact, the effectiveness of throw-away-the-key approaches to sentencing as a tool for discouraging criminal behavior is much debated among legal experts. What's more, the forensics of cybercrime make it expensive and time-consuming to prosecute, a fact well-known to more adept perpetrators of spam than Jaynes, who, after all, left an obvious trailhe even registered for his MCI connections under his sister's name, according to trial testimony.

"Good Lord, he might as well have put a sign on his back that said 'Prosecute Me,'" says Susan Brenner, a professor at the University of Dayton law school who specializes in computer crimes. When it comes to cybercrime, says Brenner, "it's not the penalty that matters, but the chance you're going to get caught. You can punish [Jaynes] all you want, but the rest don't think they're going to get caught."

And that means the unmistakable message about the scourge of spam is that, tough penalties or no, it won't be easing any time soon.