Top Spammer Arrested; Soloway

Robert Alan Soloway has been described as one of the world's top spammers; he is one of the people who fills your email in box with junk everyday.^[1] He was arrested in Seattle, Wednesday, May 30, and federal authorities believe that this will lead to an immediate, perceptible decrease in the amount of junk e-mail flying around the Web.^[2] ''He's one of the top 10 spammers in the world,'' said Tim Cranton, a Microsoft Corp. lawyer who is senior director of the company's Worldwide Internet Safety Programs. ''He's a huge problem for our customers. This is a very good day.''^[3]

Soloway's arrest came a week after a federal grand jury returned a 35-count indictment charging him with mail fraud, wire fraud, e-mail fraud, aggravated identity theft and money laundering.^[4] In court Wednesday afternoon, Soloway pleaded not guilty to all charges; he has been accused of using networks of compromised computers to send out millions upon millions of junk e-mails.^[5] It is alleged that he has been doing this for 4 years, and he continued his activities despite a $7 million civil judgment against him in 2005 won by Microsoft, and another by Robert Brauer, the operator of a small Internet service provider in western Oklahoma, who won a $10 million judgment.^[6]

The case is the first in the country in which federal prosecutors have used identity theft statutes to prosecute a spammer for taking over someone else's Internet domain name, and it would mean at least an extra two years on Soloway's sentence if he is convicted.^[7] He could face decades in prison, though prosecutors said they have not calculated what guideline sentencing range he might face.^[8]

However despite the arrest, junk e-mail continued to land in mailboxes around the world Thursday, May 31.^[9] Even if Soloway is ultimately convicted and his operations shuttered, spam experts say dozens are in line to fill the void. This is mostly a symbolic arrest, and it is unlikely to significantly effect the spam traffic worldwide.^[10]

Soloway, was once on a top 10 list of spammers kept by The Spamhaus Project, an international anti-spam organization.^[11] Others have since topped him, mostly based in Russia and other countries out of reach of U.S. or European law.^[12] "Most of the Russian gangs seem to have a lot more freshly hijacked computers and are able to deliver much more spam into people's inboxes," said Vincent Hanna, a European investigator for Spamhaus.^[13]

Aggravated Identity Theft
Aggravated identity theft occurs when the crime of identity theft is coupled with another felony, here bank fraud. Under 18 U.S.C. § 1028A, if a person knowingly and unlawfully transfers, possesses, or uses a means of identification of another person in conjunction with the commission of a set list of felonies, that person will be punished as those felonies provide and that person will additionally be imprisoned for 2 years. If the felony happens to be a terrorism offense, that person will receive an additional 5 years of imprisonment.^[14]Furthermore, that person will not be placed on probation, nor will the term of imprisonment run concurrently, unless the court has been given discretion to do by the Sentencing commission.^[15]

E-mail Fraud
E-mail fraud is covered under 18 U.S.C. § 1037. This statute makes it illegal for a person to, in or affecting interstate or foreign commerce, knowingly: (1) accesses a protected computer without authorization, and intentionally initiates the transmission of multiple commercial electronic mail messages from or through such computer;^[16] (2) uses a protected computer to relay or retransmit multiple commercial electronic mail messages, with the intent to deceive or mislead recipients, or any Internet access service, as to the origin of such messages; ^[17](3) materially falsifies header information in multiple commercial electronic mail messages and intentionally initiates the transmission of such messages;^[18] (4) registers, using information that materially falsifies the identity of the actual registrant, for five or more electronic mail accounts or online user accounts or two or more domain names, and intentionally initiates the transmission of multiple commercial electronic mail messages from any combination of such accounts or domain names;^[19] or (5) falsely represents oneself to be the registrant or the legitimate successor in interest to the registrant of 5 or more Internet Protocol addresses, and intentionally initiates the transmission of multiple commercial electronic mail messages from such addresses.^[20]

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^[1] AP Wire, Feds in Seattle arrest man described as one of world's top spammers, Associated Press Newswire, May 30, 2007, available at LEXIS, News Library, Wire News Services.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Anick Jesdanun, Spam Flows Despite High-Profile Arrest , Associated Press Newswire, May 31, 2007, available at LEXIS, News Library, Wire News Services.
^[10] Id.
^[11] Id.
^[12] Id.
^[13] Id.
^[14] 18 U.S.C. § 1028A (2007).
^[15] Id.
^[16] 18 U.S.C. § 1037(a)(1)(2007).
^[17] Id. at §1037(a)(2).
^[18] Id. at §1037(a)(3).
^[19] Id. at §1037(a)(4).
^[20] Id. at §1037(a)(5).