Prosecutors - Defendants flooded AOL members with spam messages

The Associated Press

LEESBURG, Va. -- Three people who allegedly sent America Online customers millions of junk e-mail messages touting penny stocks and other Internet gimmicks went on trial Tuesday in the nation's first such felony case.

The defendants are being tried under a 2003 Virginia anti-spam law that prosecutors say is the harshest of its kind in the nation.

The three face up to 15 years in prison if convicted on all three counts.

Assistant attorney general Russell McGuire told jurors that on one day alone in July 2003, defendant Jeremy Jaynes sent or attempted to send 7.7 million e-mail messages to AOL customers using false identities or bogus company names. The goal of the messages was 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 the suspects used false identities to evade AOL's spam filters.

"When you masquerade your identity, that's when you have a problem," McGuire said.

Defense attorneys 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 defendant Jessica DeGroot.

"It may be annoying to you, but it's not a crime to market on the Internet."

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 Virginia headquarters.

While other states have passed spam laws in recent years, Virginia authorities say theirs goes further than others because it gives prosecutors the power to seize assets from those sending bulk e-mail while imposing up to five years in prison.