In another setback to federal anti-spam legislation, Federal District Judge Hellerstein rejected a guilty plea that prosecutors reached with Smathers, a former AOL employee, who allegedly stole 92 million e-mail addresses from AOL servers and selling them to spammers for more than $100,000.

The prosecution convinced Smathers to plead guilty under the CAN-SPAM law which took effect in January. But the judge, who himself admitted dropping his AOL account because of spam, did not agree with the prosecution that a crime under the CAN-SPAM Act has even been committed,

Everybody hates spamsters, there’s no question about that. I’m not prepared to go ahead, Mr.
Siegal [the prosecutor]. I need to be independently satisfied that a crime has been
created.

The judge’s reasoning is that for a crime to be committed under CAN-SPAM, there must be an element of deception, and this element was not presented in this case. If the elements of a crime are not met, the prosecution’s plea with the accused may be baseless. The rejection of the guilty plea does not mean that Smathers will be off the hook, it just means that the prosecution will have to present further evidence and show that Smathers used deception. Absent deception, CAN-SPAM would not apply.

This is another example of how CAN-SPAM fails to deliver the tools prosecutors need to go after spammers and their accomplices. The same case and guilty plea would have been properly made and accepted under many states’ now-preempted spam laws, but not under the CAN-SPAM Act.