International Pornographic Spam—Guilty Plea

A woman from New Hampshire has pleaded guilty to two counts under the CAN-SPAM Act, and one count of conspiracy after being indicted in August for being part of an international pornographic spam network.^[1]

According to the plea agreement, Jennifer Clason conspired with two individuals—Jeffrey Kilbride, and James Schaffer—in the transmission of numerous spam e-mails containing graphic pornographic images.^[2]

The August indictment charged all three defendants with two counts of fraud and related activity in connection with electronic mail under the CAN-SPAM Act and one count of criminal conspiracy.^[3] Furthermore, Mssrs. Kilbride and Schaffer were charged with two counts of interstate transportation of obscene material using an interactive computer service, two counts of interstate transportation of obscene material for the purpose of sale or distribution, and one count of money laundering.^[4] The obscene material was hardcore pornography, which is being prosecuted more and more often. Just last week, an individual who owned adult video stores in Texas was sentenced for interstate transportation of obscene material.^[5]

The indictment further alleged that Mssrs. Kilbride and Schaffer created and utilized overseas companies named The Compliance Company and Ganymede Marketing to conceal and disguise their activities, along with using overseas bank accounts in Mauritius and the Isle of Man for the purpose of laundering and distributing the proceeds of the spamming operation.^[6]

Two other individuals—Andrew D. Ellifson, and Kirk F. Rogers—have already pleaded guilty to charges under the CAN-SPAM Act related to this spamming operation.^[7] Mssrs. Ellifson and Rogers are scheduled to be sentenced on June 5, 2006 in Phoenix; Mssrs. Kilbride and Schaffer are scheduled to go on trial on June 6.^[8]

The criminal provisions of the CAN-SPAM Act are found in 18 U.S.C. § 1037. Under this section, it is a crime to do or conspire to do one, some, or all of the five things outlined in section 1037(a)(1)-(5). The first is accessing a protected computer without authorization and intentionally initiating the transmission of multiple commercial electronic mail messages [hereinafter "emails"] from or through that computer. The second is using a protected computer to relay or retransmit multiple commercial emails, intending to deceive or mislead recipients about the origin of such a message. The third is materially falsifying header information in multiple emails and intentionally initiating the transmission of such emails. The fourth is registering, "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." Finally, the fifth category of crime is falsely representing "oneself to be the registrant or the legitimate successor in interest to the registrant of 5 or more Internet Protocol addresses," and intentionally initiating the transmission of multiple emails from such addresses.

A person convicted under the CAN-SPAM Act faces up to five years in prison, a fine, or both.

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[1] US DOJ, DOJ: Third Defendant Pleads Guilty in Prosecution of Major International Spam Operation (via US Newswire), Mar. 6, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] See Immigration and Customs Enforcement, National Operator of Sexually Oriented Business Sentenced on Federal Obscenity and Tax Charges, Mar. 2, 2006.
[6] DOJ, supra note 1.
[7] Id.
[8] Id.