SpamSuite.com

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

UNITED STATES OF AMERICA,
Plaintiff,

v.

ROBERT ALAN SOLOWAY,
Defendant.

MOTION TO DISMISS COUNTS 19 THROUGH 25 OF THE SECOND SUPERSEDING INDICTMENT

COMES NOW the defendant, ROBERT ALAN SOLOWAY, by and through his counsel of record, Richard J. Troberman, P.S., and moves the Court, pursuant to Fed.R.Crim.Pro. 12 (b)(2), for an Order dismissing Counts 19 through 25 of the Second Superseding Indictment. This motion is based on the pleadings, records, and files herein, and is made for the reasons set forth in the subjoined Memorandum of Law.

1.
INTRODUCTION.

On May 23, 2007, the grand jury returned a 35 count indictment against Mr. Soloway. The charges included, inter alia, five counts of aggravated identity theft, in violation of 18 U.S.C. §1028A. Mr. Soloway was arrested on May 30, 2007. During a press conference following Mr. Soloway's arrest, then interim United States Attorney Jeffrey Sullivan announced that
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this was the first time anywhere in the country that a "spammer" had been charged with aggravated identity theft based on his spamming activity. As will be demonstrated below, there is good reason why the aggravated identity theft statute has not previously been applied to spamming activity: it simply does not apply.

On October 24, 2007, the grand jury returned a 36 count Superseding Indictment in this case. Thereafter, on January 3, 2008, the grand jury returned a Second Superseding Indictment. The Second Superseding Indictment includes seven counts of aggravated identity theft, all of which are the subject of this motion to dismiss.

Each of the seven aggravated identity theft counts is based on emails with "forged" headers allegedly sent by Mr. Soloway.' The government alleges that in those emails, Mr. Soloway replaced his (the sender's) email address in the header with the recipient's email address. Thus, for example, if the email was sent to "JaneDoe@hotmail.com" , the header would show "From: JaneDoe@hotmail.com; To: JaneDoe@hotmail.com" instead of "From: Robert@newportmarketing.com; To: JaneDoe@hotmail.com." This was typically done in order to try to circumvent a spam filter. The recipient obviously knew that she did not send the email to herself, and once the email was opened--if it was opened--the email clearly informed the recipient of the sender's website address. An example of an email allegedly sent by defendant is attached hereto as Exhibit A. As can be seen from the exhibit, the header reads "From: Sales@dalem***r.com; To: Sales@dalem***r.com." The body of the email contains the following message: email advertise like this to 8,000,000 people... free...
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http://wwww.emailadvertisinginc.com/

have you started christmas advertising yet?

the above noncommercial offer is only for noncommercial charities only. press on charity info on our web site for full and complete details. this offer is not a commercial service and is not at all for sale or lease or trade of any kind.

[1 With respect to Count 19, the government may also attempt to prove that Mr. Soloway used a variation of the recipient's email address to send email to a third party.]

As can be seen, the email was directed at non-profit organizations and charities, and did not offer anything for sale. Instead, it offered to advertise, at no charge, the non-profit's or charity's message. The email also contained a link to Mr. Soloway's broadcast email website, which did advertise both broadcast email services and broadcast email products for sale. A copy of the home page of defendant's website is attached hereto as Exhbit B. But the recipient of the email went to that site only if they wanted additional information, and took the additional step of clicking on the link that was contained in the email. If the recipient did not take the additional step of clicking on the link, then the recipient never even saw the advertisement for the email services or products. If they did click on the link, they were directed to the defendant's website, which was clearly identified as such. Once at the defendant's website, there is simply no way that any person could have been misled as to the source of the email, and there was no deprivation of anyone's email address, at least as that term is commonly understood.

It is also important to note that the government does not allege that the email or the website contained any virus, worm, spyware, pornography, or similar malevolent content, and there was no possibility that a recipient of the email who purchased a service or product could have been misled with respect to the identity of the website from which they purchased the service or product.

In sum, then, what the government is alleging (and has charged) as aggravated
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identity theft is the sending of what purported to be an arguably non-commercial email in which the header identifies the return email address as being the same email address as the person to whom the email is sent.2

[2 The complete header, which is always available for viewing by the recipient, would also clearly show that the email was not sent by the recipient. The header visible in the "in-box" is merely an abbreviated version of the header.]

II.
ARGUMENT.

A. COUNTS 19 THROUGH 25 CHARGE DEFENDANT WITH VIOLATIONS OF 18 U.S.C. §1028A.

18 U.S.C. §1028A is entitled "Aggravated Identity Theft." The defendant's conduct was not aggravated in the sense that it was not the type of conduct for which the statute intended enhanced penalties to apply; it did not involve what can be fairly characterized as someone's identity (an email address does not identify a person); and it did not involve the theft or deprivation of anything, including anyone's email address.

The aggravated identity theft statute was enacted in 2004 in response to what some considered to be inappropriately lenient sentences being meted out to identity thieves, and was intended to provide enhanced penalties for more serious crimes involving identity theft. The legislative history, Purpose and Summary, provides as follows:

H.R. 1731, the "Identity Theft Penalty Enhancement Act," addresses the growing problem of identity theft. Currently under 18 U.S.C. §1028 many identity thieves receive short terms of imprisonment or probation; after their release, many of these thieves will go on to use false identities to commit much more serious crimes. H.R. 1731 provides enhanced penalties for persons who steal identities to commit terrorist acts, immigration violations, firearms offenses, and other serious crimes. The bill also amends current law to impose a higher maximum penalty for identity theft used to facilitate acts of terrorism. H.R. Rep.
108-528 at 3, 2004 (emphasis supplied).

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Since the enactment of the statute, there have been only a handful of cases that have interpreted its meaning and scope, and the Ninth Circuit Court of Appeals has yet to weigh in on this issue. All of the reported cases have involved the clear theft or misappropriation and deprivation of someone's identity, or the creation of false identity documents, typically to obtain goods or services by opening lines of credit or bank accounts in the name of the stolen identity; to obtain employment through false or stolen documents (e.g., a fraudulent or stolen social security card); or to obtain illegal entry into the United States through the use of a false or stolen passport. None of the reported cases involve the type of attenuated or incidental "use" alleged in the case at bar.

Almost all of the cases addressing this statute have dealt with the question of whether the statute's mens rea provision requires the government to prove that a person accused of violating the statute knew that the identification in question belonged to an actual person at the time the offense was committed. Consequently, the abbreviated caselaw is not helpful in resolving the issue presently before the Court, which appears to
be a matter of first impression.

One of the few cases that has interpreted this statute was decided by this Court in what was then only the second published opinion addressing §1028A. See, United States v. Beachem, 399 F.Supp.2d 1156 (W.D.Wash. 2005). While the issue there (the mens rea requirement) is not the precise issue before the Court here, this Court's methodology in that case should apply with equal or more force here:
In reaching this decision, this Court was also persuaded by the facts that the title of 18 U. S. C. §1028A is "Aggravated Identity Theft" and that the legislative history of the statute speaks directly about, "provid[ing] enhanced penalties for persons who steal identities. . . H.R. Rep. 108-528 at 3, 2004 (emphasis added). As the Montejo court noted, an
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intent to deprive another person of property is traditionally an element of the crime of theft. Montejo, at 353 F. Supp.2d at 654. Id., 399 F.Supp.2d at 1158.

This Court also recognized in Beachem "the somewhat absurd level of punishment reached under [this] statute. " Id., at 1158. There, the defendant was alleged to have used social security numbers that did not belong to her in order to open bank accounts under false identities. The defendant used multiple false identities and false documents to open at least three separate bank accounts, on which she wrote a total of 81
NSF checks, thereby defrauding banks, merchants, and individuals out of over $30,000.00. Here, by contrast, the defendant merely included the recipient's email address in an email header as both the "To" and the "From." The email itself offered free advertising for charities and non-profits. Only in the cramped view of a federal prosecutor could anyone reasonably try to shoehorn Mr. Soloway's conduct into a violation of a statute dealing with aggravated identity theft.

Although this Court's decision in Beachem is the minority view, it does not stand alone.3 Rejecting the Fourth Circuit's view in Montejo, and distinguishing the Eighth Circuit's opinion in Hines, the district court for the Northern District of Iowa recently adopted this Court's reasoning and methodolgy in Beachem. In so holding, that court recognized that the interpretation of a statute is not limited to the meaning of a statute's individual words.

[3 At least two appellate courts have decided the mens rea issue the other way. See, United States v. Montejo, 442 F. 3d 213 (4th Cir. 2006) and United States v. Hines, 508 F. 3d 603 (11th Cir. 2007). One other appellate decision addresses the mens rea issue, but its ruling is more narrow, and was recently distinquished by a district court within the same circuit. United States v. Salazar-Montero, 520 F.Supp. 1079 (N.D. Iowa 2007).]

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This "plain language" or "plain meaning" rule of interpretation is not limited to the meaning of individual terms; rather "[s]uch an inquiry requires examining the text of the statute as a whole by considering its context, 'object and policy."' Harmon Indus., Inc. v. Browner, 191 F.3d 894, 899 (8th Cir. 1999) (quoting Pelofsky v. Wallace, 102 F.3d 350, 353 (8th Cir. 1996)). Thus, the court must "effectuate the intent reflected in the language of the enactment and the legislative process. " Colorado v. Idarado Mining Co., 916 F.2d 1426, 1494 (10th Cir. 1990), cert. denied 499 U.S. 960, 111 S.Ct. 1584, 113 L.Ed.2d 648 (1991), and it is not required to "produce a result demonstrably at odds with the intentions of [the statute's] drafters." Ron Pair Enters. Inc., 489 U.S. at 242 (internal quotation marks omitted. United States v. Salazar-Montero, 520 F.Supp.2d 1079, 1088 (N.D.Iowa 2007).

Clarity and understanding of the scope of conduct intended to be subject to enhanced penalties by this statute is even more important where, as here, the statute imposes a mandatory minimum sentence (two years imprisonment that must be consecutive to any other penalty imposed).

B. THE CONDUCT ALLEGED IN COUNTS 19 THROUGH 25 IS ALREADY COVERED IN COUNT 18.

What the government is alleging to be aggravated identity theft in Counts 19 through 25 is covered by a more specific statute, Fraud and Related Activity in Connection with Electronic Mail, 18 U.S.C. §1037, as charged in Count 18. That statute provides, in relevant part, as follows:

(a) In general. -- Whoever, in or affecting interstate commerce, knowingly-
(3) materially falsifies header information in multiple commercial electronic mail messages and intentionally initiates the transmission of such messages,
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shall be punished as provided in subsection (b).

18 U.S.C. §1037.

Clearly, Congress knew how to punish the offense of materially falsifying information in an email header when it enacted 18 U.S.C. §1037(a)(3). The statute defines "materially" as follows:

(d) Definitions.--In this section:
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(2) Materially.--For purposes of paragraphs (3) and (4) of subsection (a), header information or registration information is materially falsified if it is altered or concealed in a manner that would impair the ability of a recipient of the message, an Internet access service processing the message on behalf of a recipient, a person alleging a violation of this section, or a law enforcement agency to identify, locate, or respond to a person who initiated the electronic mail message or to investigate the alleged violation. 18 U.S.C. §1037(d)(2). That is the statute under which conduct similar to that allegedly committed by the defendant in this case is typically prosecuted. See, e.g., United States v. Twombly, 475 F.Supp.2d 1019 (S.D.Cal.2007). There, the defendants, who were prosecuted only for violating § 1037, argued that a header does not necessarily identify the sender, and that a lay person has little or no ability to trace a sender's location based on the sender's email address. The court rejected this argument, holding that

While it is true that email addresses do not necessarily on their face identify the sender by name, that is beside the point. An email address may not identify who a sender is, but it does tell a recipient where to send replies to the sender, much in the same way a return address on an envelope identifies the sender of a letter and tells the recipient where to send replies to. A material falsification of header or registration information can violate this provision by hindering a recipient's ability to respond to the sender of an email, which is one of the provisions of § 1037(d)(2).

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Defendants also argue that because laypeople's ability to identify senders is inherently impaired, the statute is meaningless. This is a straw man argument: the statute at issue does not assume senders are personally identifiable from header information, nor does it purport to require easy and perfect identification; it merely forbids fraudulent interference with the user's ability to locate senders. The fact that individuals' ability to identify senders is already limited does not necessarily mean that it cannot be impaired further.

Id., at 1023. While it is unclear from the facts recited in Twombly what type of falsification was used in the header, the end result is the same as what is alleged here--the recipients of the emails were unable to identify, locate or respond directly to the person who sent the email. No greater harm was caused by falsifying the header with the recipient's name than would have been caused by falsifying it with an entirely made up name.4 Thus, there is no reasonable basis to apply an enhanced penalty, especially one as severe as that contained in 18 U.S.C. §1028A, to the defendant's conduct in this case.

[4 Had the defendant simply used in the "From" portion of the header a purely fictional name, such as anonymous@aol.com, the effect on the recipient of the email would have been exactly the same: the recipient would not be able to determine the originator of the email, and would be unable to locate or respond to that person or entity.]

This is made even more clear by the fact that, as discussed by the court in Twombley, an email address does not identify either the sender or the recipient, so it cannot be said that the recipient's identity or means of identification was stolen or misappropriated in any event. See also United States v. Kilbride, 507 F.Supp.2d 1051 (D.Ariz.2007). That case, decided in August of 2007, is reportedly one of, if not the, first criminal trials under the CAN-SPAM Act. Kilbride, at 1054. That case was prosecuted under 18 U.S.C. §1037, rather than 18 U.S.C. §1028A, as has been charged here, even though the conduct in
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Kilbride was far more egregious than has been alleged in the case at bar. There, Kilbride and his co-defendant Schaffer sent millions of spam messages that contained pornographic images that would instantly appear on the recipients' computer screen upon opening the email. Kilbride and Schaffer sent the emails by using headers that were materially falsified by using a variant of the recipient's email address. Nevertheless, Kilbride and Schaffer faced far less severe penalties for their conduct than is faced by the defendant here, since unlike the instant case, they were correctly charged under 18 U.S.C. §1037, and not under 18 U.S.C. §1028A.

III.
CONCLUSION.

For all of the reasons hereinabove set forth, 18 U.S.C. §1028A does not apply, as a matter of law, to the facts alleged in Counts 19 through 25 of the second superseding indictment. Defendant allegedly falsified headers in email messages by substituting the intended recipient's email address for his own in the "from" portion of the header. That conduct is properly charged under 18 U.S.C. §1037(a)(3), a specific statute dealing with fraud in connection with electronic mail. Defendant did not steal or deprive anyone of their email address or identity. Accordingly, Counts 19 through 25 of the second superseding indictment should be dismissed.
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DATED this 8 th day of February, 2008.

RICHARD J. TROBERMAN, P.S.

Richard J. Troberman
Attorney for Defendant
Robert Alan Soloway

Attachment	Date	Size
MotDismiss19-25.pdf	02/25/08 7:53 pm	921.43 KB