NWA-PCUG Newsletter Article, February 2005
Legal Bytes: It's the Slammer for a Spammer!
by John Brewer, Computer Club of Oklahoma City

Spam is a nuisance. The cretins that engage in this sort of advertising deserve a fate of solitary confinement without Internet access and with rap music playing constantly at a high volume. A recent Virginia case has sent a message to the spammer community that should not be ignored. A jury in Leesburg, Virginia, AOL’s home county, convicted two North Carolina spammers of sending spam through computers located in Virginia. A third defendant was acquitted.

An article at http://www.Spamhaus.org reported the convictions. “Jeremy Jaynes of Raleigh, North Carolina, a prolific spammer who operated using the alias 'Gaven Stubberfield' and was listed by Spamhaus' ROKSO database as being the 8th most prolific spammer in the world, has been convicted of spamming using deceptive routing information to hide the source. A Virginia court recommended Jaynes spend nine years in prison for sending hundreds of thousands of unwanted e-mail messages. Virginia Attorney General Jerry Kilgore said Jaynes was found guilty under a Virginia state law that prohibits e-mail marketers from sending more than a certain amount of spams within a given time frame and prohibits the use of fake e-mail addresses.

Jaynes' sister, Jessica DeGroot, was also found guilty and fined $7,500. An associate, Richard Rutkowski of eVictory Consulting (known to Spamhaus as being involved in "National Wealth Builders" spamming), was found not guilty.

A Loudoun County jury decided that Jaynes, 30, and his sister, DeGroot, 28, flooded tens of thousands of AOL e-mail accounts with unsolicited e-mail. The jury recommended that Jaynes spend nine years in prison and that DeGroot pay $7,500 in fines for violating Virginia's anti-spam law.

Although both Jaynes and DeGroot lived in North Carolina, Virginia asserted jurisdiction because they sent messages through server computers located in the state.”

http://www.SecurityFocus.com has reported other developments reference criminal prosecutions for spamming.

“A Los Angeles man who used other people's wi-fi networks to send thousands of unsolicited adult-themed e-mails from his car pleaded guilty to a single felony Monday, in what prosecutors say is the first criminal conviction under the federal CAN-SPAM Act. [Note: the Virginia prosecutions were under Virginia state law, CAN-SPAM is federal law.] In a plea agreement with prosecutors, Nicholas Tombros, 37, faces a likely sentencing range stretching from probation to six months in custody, assuming he has no prior criminal convictions. Sentencing is set for December 27th.

Tombros drove around the Los Angeles beachfront suburb of Venice with a laptop and a wi-fi antenna sniffing out unsecured residential access points, which he then used to send thousands of untraceable spam messages advertising pornography sites.”

An FBI spokesperson said earlier this month that Tombros obtained the e-mail addresses from a credit card aggregation company where he used to work, but officials have not revealed how they caught the spammer.

The CAN-SPAM Act, which took effect January 1, 2004, doesn't criminalize unsolicited bulk commercial e-mail, but it does prohibit most of the deceptive practices used by spammers. Tombros was charged under a provision that prohibits breaking into someone else's computer to send spam. Also outlawed is the practice of deliberately crafting spammy (Note: spammy?) messages to disguise the origin; materially falsifying the headers in spam; spamming from five or more e-mail accounts established under fake names; or hijacking five or more IP addresses and spamming from them.

A first-time violator faces up to one year in federal stir for a small-time operation -- three years if he or she meets one of several minimum standards of bad behavior, like leading a spam gang of at least three people, sending over 2,500 messages in one day, or using 10 or more falsely-registered domain names.

Assistant U.S. attorney Wesley Hsu, who prosecuted Tombros, says he believes the spammer is the first to be convicted under CAN SPAM. "It is my understanding that it is, in fact, the first," said Hsu.

But even without the spam-fighting legislation, Tombros' drive-by spamming technique would likely have put him afoul of existing computer crime laws, said David Sorkin, an associate professor at the John Marshall Law School. "It sound to me like this could very well have been prosecuted under other statutes."

The Tombros case is one of a handful of wireless hacking convictions federal prosecutors reeled in this year. In June, a Maryland man with a grudge against a Connecticut-based patent firm pleaded guilty to using unsecured wireless networks at homes and businesses in the Washington D.C. area to penetrate the company's computers and deliver anonymous threats and extortion demands.

The same month, two Michigan men, Brian Salcedo and Adam Botbyl, pleaded guilty to conspiracy charges stemming from a scheme to steal credit card numbers from the Lowe's home improvement chain through an unsecured wi-fi network at a suburban Detroit store. A third man later pleaded guilty to a misdemeanor for using the same access point to check his e-mail.”

Spamhaus is a company located in the United Kingdom. It offers an anti-spam service based on a database that collects information and evidence on known spammers and spam gangs, to assist ISP abuse desks and law enforcement agencies. Spamhaus states that approximately 200 spam operations account for 90% of all spam. The following information is found on the Spamhaus web site.

“90% of spam received by Internet users in North America and Europe can be traced via redirects, hosting locations of web sites, domains and aliases, to a hard-core group of around 200 known spam operations, almost all of whom are listed in the ROKSO database. These spam operations consist of an estimated 500-600 professional spammers loosely grouped into gangs ("spam gangs"), the vast majority of whom are operating illegally, and who move from network to network seeking out Internet Service Providers ("ISPs") known for lax enforcing of anti-spam policies. These are the spammers you definitely do NOT want on your network.

Many of these spam operations pretend to operate 'offshore' using servers in Asia and South America to disguise the origin. Those who don't pretend to be 'offshore' pretend to be small ISPs themselves, claiming to their providers the spam is being sent not by them but by their non-existent 'customers'. Some set up as fake networks, pirate or fraudulently obtain large IP allocations from ARIN/RIPE and use routing tricks to simulate a network, fooling real ISPs into supplying them connectivity. When caught, almost all use the age old tactic of lying to each ISP long enough to buy a few weeks more of spamming and when terminated simply move on to the next ISP already set up and waiting.”

Unfortunately there is nothing simple about modern spamming operations. Hopefully, the criminal prosecutions will continue until the spammers get the message.

John Brewer practices law in Oklahoma City, is a member of the Governor’s and Legislative Task Force for E-Commerce, and enjoys issues relating to eBusiness and cyberspace. Comments and questions are welcome and can be emailed to Johnb@jnbrewer.com.

There is no restriction against any non-profit group using this article as long as it is kept in context with proper credit given the author. The Editorial Committee of the Association of Personal Computer User Groups (APCUG), an international organization of which this group is a member, brings this article to you.

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