AOL, EarthLink File Lawsuits Against Spammers

With the federal Can Spam Act so far proving ineffective, ISPs are pursuing aggressive civil actions.

By Ron Miller

Two of the nation's largest Internet service providers (ISPs) filed civil actions against bulk e-mailers Thursday to combat the continuing spam flooding ISP servers.

Dulles, Va.-based America Online (AOL) filed a $1.6 million civil law suit in Florida, claiming that a software firm conspired with international spammers based in Thailand to deliver more than 35 million spam messages to AOL subscribers.

In a separate action, Atlanta-based EarthLink moved against a multi-state spam ring in which 16 individuals and corporations allegedly sent out more than 250 million illegal junk e-mails. The lawsuit identifies alleged individuals and corporations in Florida, California, Tennessee, Michigan and Nevada. EarthLink is seeking unspecified damages.

The AOL lawsuit alleges the defendants conspired to set up and maintain a bank of e-mail servers in an office suite in Ocoee, Fla. The spammers, according to AOL, configured their equipment to facilitate spamming and wrote code for a proprietary bulk e-mail software program, known as Merlin, in an attempt to evade AOL's mail filters.

AOL is alleging violations of the Virginia Computer Crimes Act, the Federal Computer Fraud & Abuse Act, and State of Florida Common Law. It's asking a court to shut down the spammers' operation, award it at least $1.6 million in damages, and force the defendants to forfeit their assets. It is also seeking compensatory damages as part of the action.

"The defendants in the case have even created a software program with the express purpose of garnishing screen names of AOL members," said Nicholas Graham, an AOL spokesperson. As a result, the defendants have allegedly routed 35 million spam messages through AOL's servers AOL said.

The Florida defendants include Connor-Miller Software, Inc., Charles Henry Miller Jr., Heidi Miller; and James Connor, while alleged co-conspirators living in Thailand include Jonathan Beyer and Joseph Conrad. AOL alleges that Beyer, a U.S. citizen residing in Thailand, headed the conspiracy and paid Connor-Miller $4000 a month between September 2002 until at least June 2003 to maintain a network used to transmit mortgage rate spam to AOL members beginning in December 2002.

In a report published in Wednesday's Orlando Sentinel, Heidi Miller denied the charges, claiming she and her husband were victims of circumstance. Efforts to reach the defendants in the case by press time were not successful.

The latest legal action also adds a parallel track to a pending case against the Thailand-based spammers already sued by AOL. But "with this action, AOL is going after 'conspirators' based in the U.S. who have allegedly aided and abetted the offshore spammers," Graham said.

The AOL and EarthLink actions do not involve the federal Can Spam Act signed by President Bush in December. Graham said the AOL case was under investigation well before the Can Spam act was signed into law.

However, Graham added, the AOL case highlights "the need for stricter laws with tougher penalties to be adopted in the state of Florida, that would allow law enforcement officials to pursue spammers with stronger civil penalties and stiff criminal penalties such as having assets forfeited and even going to jail."

According the papers filed in the lawsuit, "AOL's e-mail system currently receives nearly 2 billion e-mail messages a day." AOL claims its e-mail filters currently block a whopping 1 billion messages per day, a figure they claim in the lawsuit is 10 times higher than the average daily spam volume back in 1999 when they installed the filters.

The high level of processing required to filter the spam is impairing AOL's ability to deliver legitimate e-mail to its members, the lawsuit states.

In its lawsuit, EarthLink accuses the defendants of violating federal and state laws, including federal and state civil RICO laws, the Computer Fraud and Abuse Act, the Electronic Communications Privacy Act, and the Georgia Computer Systems Protection Act. The lawsuit also alleges that the defendants used stolen or falsified credit cards, identity theft, banking fraud and other illegal activities to fraudulently purchase Internet accounts and send out their junk e-mails.

EarthLink is asking for a judge to enjoin the defendants from illegally spamming any Internet user, regardless of the user's ISP. The company is also seeking unspecified damages.






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