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The Nine-Year Itch

Sure, spam is a scourge. It’s too bad a Virginia jury’s tough sentence for a convicted spammer won’t make a difference.
November 30, 2004

The message from the jury in Loudoun County, VA, was unmistakable: For hurling unwanted bulk e-mail to millions of America Online subscribers, Jeremy Jaynes was getting the book thrown at him. After listening to eight days of testimony in a trial that was Virginia’s first for its anti-spam statute, the 12-person jury recommended that the 30-year-old Jaynes spend nine years in prison.

Virginia Attorney General Jerry Kilgore called the sentencing recommendation a victory. Jaynes’ defense attorney called it shocking. One juror told a reporter that some panel members had pushed for a 15-year sentence.

For the Jaynes jury, the arc of spam’s trajectory through the culture has carried it from being a clogger of in-boxes to a felony that merited a sentence on a par, in Virginia jurisprudence, with possession of child pornography. Observers say the emphatic message no doubt resonated among law-enforcement and judicial officials pursuing legal remedies. The widespread media attention may have had an educational affect on the public. The only group it’s not likely to affect? Spammers.

Jaynes’ case involved mind-numbing levels of spam as well as financial fraud. Prosecutors allege that from his home in Raleigh, NC, Jaynes used 16 T-1 data lines to blast as many as 10 million e-mail pitches a day. Among the databases he used was a stolen list of AOL subscribers. Virginia prosecutors maintained they had jurisdiction over Jaynes once his missives passed through AOL servers in the Loudon County town of Dulles, VA, about 25 miles west of Washington, DC.

The case against Jaynes emphasized his fraudulent peddling of software that was claimed to enable its users to obtain refunds from Federal Express–refunds that the shipping company owed for failing to meet its guarantee of ontime delivery. Each month, 12,000 to 17,000 people took Jaynes up on his offer for this refund processor, paying $39.95 each for a kit that let them earn $75 an hour. Jaynes, a one-time direct-mail marketer, allegedly pocketed as much as $750,000 month. He was charged with three counts of felonious e-mail, which Virginia law defines as exceeding 10,000 messages during a 24-hour period and, in Jaynes’ case, falsifying the routing information to prevent recipients from knowing who sent the messages and how to contact him. For one thing, says Luehr, the details of the case confirm the scope of digital scams that law officers have long suspected.

The jury may have piled on Jaynes with the aggression of, say, fans at an NBA game. But will its message of zero-tolerance stick? It will among law-enforcement officials, says Paul Luehr, a former federal attorney who spent 11 years prosecuting fraud for the U.S. Department of Justice and the Federal Trade Commission. For one thing, says Luehr, the details of the case confirm the scope of digital scams that law officers have long suspected. For another, the case pulled back the curtain on how such schemes work.

The case shows that “spam can and should be prosecuted criminally,” says Luehr. “Many times people think of spam as a mere nuisance, and this case showed it can be part and parcel of a larger scheme.”

Indeed, Loudoun County, located within the Washington-Baltimore metropolitan area and home to high-tech titans such as America Online and MCI, was fertile ground for finding jurors able to grasp the details of a complex spam operation. “You can’t walk down the street without tripping over a computer consultant,” says John Levine, the author of Internet for Dummies who testified at the trial as an expert witness and says he was not surprised by the verdict. “Clearly, it was a savvy jury. They were paying attention, taking notes, and obviously following what was going on.”

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.

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