LEESBURG, Va. — Three North Carolinians on trial for illegally sending junk e-mail inundated America Online customers with millions of messages touting penny stocks and "Internet history erasers," a prosecutor said Tuesday during opening statements.
The trial is the nation's first felony prosecution for illegally sending bulk e-mail, or spam, according to the Virginia attorney general's Office, which is prosecuting the case under a law that took effect July 2003.
If each is convicted of all three counts, they face a possible maximum of 15 years in prison.
Defense lawyers countered that sending spam is not illegal under Virginia law unless prosecutors can prove that the defendants intentionally masked its origin and can prove that the junk e-mail was unsolicited. They said prosecutors will be unable to meet that burden.
"Marketing via the Internet is not a crime," said Thomas Mulrine, attorney for Jessica DeGroot, one of the three defendants. "It may be annoying to you, but it's not a crime to market on the Internet" unless you falsify information to send the e-mails.
David Oblon, attorney for Jeremy Jaynes, who prosecutors said was the center of the operation, said Virginia's law is complicated and poorly written, and that prosecutors cannot possibly prove all the elements necessary to make spam transmission a crime.
Assistant Attorney General Russell McGuire told the jurors in opening statements that on one day alone in July 2003, Jaynes sent or attempted to send 7.7 million e-mail messages to AOL customers using false identities or bogus company names to try to sell software that would allow a person to work from home as a "FedEx refund processor" or that would help them pick the right penny stocks.
He said they used false identities to evade AOL's spam filters.
"When you masquerade your identity, that's when you have a problem" under Virginia law, McGuire said.
Jaynes and DeGroot, who are siblings, and the third defendant Richard Rutkowski are all from the Raleigh, N.C., area, but are on trial in Virginia because they allegedly sent their spam to customers of AOL, which has its servers at its Loudoun County headquarters.
McGuire said Jaynes regularly wrote checks to DeGroot and Rutkowski for thousands of dollars a month as compensation for their roles, saying DeGroot provided a credit card account to register various business names on the Web and Rutkowski served as a contact and provided a mailing address in some cases.
Lawyers for DeGroot and Rutkowski told the jury that none of the assistance McGuire attributed to those two in his opening statement constitutes a crime.
The trial is expected to continue into next week.
Consumers should be warned that there is no such thing as a "National Do Not E-mail Registry" that will keep Spam from reaching their in-boxes.
The Federal Trade Commission says those sites might be part of a high-tech scheme to trick consumers into disclosing sensitive information and a ruse to collect valid email addresses to sell to spammers.
Consumers should contact the FTC and file a complaint if they have unknowingly given information to one of those sites.