A federal judge in Seattle on Monday did not sentence Robert Soloway, the man known as the spam king, because all of the scheduled witnesses did not have time to take the stand, even after two full days of testimony.
At the end of the testimony on Monday, Judge Marsha Pechman scheduled what is expected to be a final day of hearings on July 22. Pechman said she might be prepared to hand down a sentence at the end of that day, although she cautioned that she is struggling to determine an appropriate penalty.
One thing is certain: Soloway, notorious for the volume of spam e-mail that he facilitated, will most certainly get some jail time. The defense did not even attempt to argue against any jail time.
The government asked that he get 14 years. But while many people have struggled to deal with the increasing volumes of spam for many years now, few people have been prosecuted for sending spam, and so Pechman said she is having trouble deciding how Soloway should pay.
"When I look at the guidelines, this crime doesn't fit easily into slots," Pechman said. She was referring to a matrix of sentencing guidelines judges use to help them determine appropriate sentences.
The closest thing to spam that she can imagine is pollution -- "some are poisoned by it, others are annoyed," she said. But that still doesn't help her determine how much jail time Soloway should serve.
In addition, even after she decides on jail time, the government has already said it plans to ask for a separate restitution hearing to determine a dollar amount that Soloway should have to give up to victims of his activities. That presents an equal challenge, Pechman said. She wondered aloud if she should put a dollar figure on how much money affected people could have earned doing their regular jobs if they were not otherwise engaged in dealing with spam. Or instead, rather than losses, she could try to figure out a dollar value to pay people for their annoyance related to the spam they received, she said.
"All these things have been vexing me," she said.
Very few spam cases have ever reached federal courts. "These laws are not interpreted and ruled on widely in the U.S.," said Aaron Kornblum, a Microsoft senior attorney who attended parts of the hearing, referring to anti-spam legislation. "So as the first wave [of cases] moves through the courts, it's interesting to see their treatment."
Kornblum attended parts of the sentencing hearings in part due to Microsoft's history with Soloway. Microsoft sued Soloway for the spam he sent to Hotmail users and won a US$7.8 million judgment, none of which Soloway has yet paid.
Microsoft could have filed a request for restitution in the federal case in hopes of collecting that money, but decided not to, Kornblum said. "We want it returned to victims," he said. The federal government has seized Soloway's assets which could be used to pay back victims or winners of civil cases that haven't been paid.
Soloway lost another case filed by a small ISP in Oklahoma and was ordered to pay $10 million to that company. None of that ruling has been paid yet either.
Kornblum hopes that a sentence that includes jail time will have an affect on other spammers. "I hope it sends a message to those engaging in illegal activity," he said.
Soloway was arrested in May 2007 after the criminal charges brought by the U.S. Department of Justice and plead guilty to fraud and tax evasion. He advertised a mass e-mail service that purported to send messages to an opt-in list of addresses, but he didn't have such a permission-based list. He also sold software that he said would let customers manage their own email campaigns, but it often didn't work.