Observations on the Jeremy Jaynes Criminal Spam Trial

Observations on the Jeremy Jaynes Criminal Spam Trial Jon Praed Internet Law Group jon. praed(at)i-lawgroup. com

Who Is Jeremy Jaynes? • • • ROKSO listed spammer Alias “Gaven Stubberfield” 29, resident of Raleigh, North Carolina Investor in local restaurant and health club More insights available at: http: //newsobserver. com/news/story/1828341 p 8141513 c. html • Tried with sister Jessica De. Groot and Richard Rutkowski

The Spam Samples

Spam Sample -Penny Stock Picker

Spam Sample -Internet History Eraser

Spam Sample Fed Ex Refund Processor

Spam Timeline, Volumes & Fingerprints

Spam Fingerprints from July 16

Virginia Criminal Spam Statute (Va. Code § 18. 2 -152. 3: 1) 1. Use of a computer or computer network 2. With intent to falsify or forge electronic mail transmission information or other routing information in any manner 3. in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers

• • • Felony (Class 6) 10, 000 attempted recipients over one day (24 hour period) 100, 000…over 30 days 1 million…over one year Penalty (per offense) 1 year to 5 years in prison $2, 500 fine

Criminal Investigation Proceeds July through December 2003

Jaynes Arrested, House Searched & Evidence Seized December 11, 2003

Spam Office in Spare Bedroom

Rack Mount in Spare Bedroom

Evidence Seized • Computers, routers – Laptops, desktops, servers – Contents recovered • CDs & DVDs – email address lists – lists of user names & domain names – “anti-spammer” email address lists • Other Physical Evidence

“Spam Interruptus”

Text of Email Found on Seized Computer

Email Text from Seized Computer Email Sample from Report Spam

Notes Recovered from Trash Can

Notes Admitted into Evidence

Notes Admitted into Evidence

Merchant Credit Card Account Sales per month

Merchant Credit Card Account Sales per month x $40. 00 per sale $440, 000 per month

Merchant Credit Card Account Refunds/charge backs

Merchant Credit Card Account Refunds/charge backs x $40. 00 per sale ($332, 000) per month

Merchant Credit Card Account Sales per month $440, 000 sales - $332, 000 returns $108, 000 gross profit per month

Falsification of Transmission Information

ARIN Contract

Proof of Payment for Domain Name Registration • • • Valid Visa credit card False names (“Janet Marsh”) Card successfully charged Charge was not disputed Signatory on card (Jessica Jaynes)

Testimony of UPS Store Owner • Postal Form 1583 Required by Law • Not One Customer Named “John Rogers” • Nine Years of Records

UPS Store Application

Proof the Emails were “Unsolicited” • Recipient testimony – Burdensome and unwieldy – Indirect admission is difficult (hearsay) • Absence of evidence of request for solicitation in spammers’ possession (Absence of business record) • Expert testimony

Expert Testimony: Drug Dealers and Spammers • Police officers routinely qualify as experts on drug possession charges • No “ultimate fact” (can’t say “in my opinion, defendant is a dealer”) • Quantity of drugs found on defendant is “not consistent with personal consumption” • Prosecutor argues evidence shows defendant “is a dealer”

Dr. John Levine • Expert for the Commonwealth • Testified Defendants’ email patterns were “not consistent with solicited email practices” – Inconsistent from lines – Large number of IP addresses used –. bz domain names (Belize) • Untouchable on cross examination • See Dr. Levine’s article on Circle. ID. com (http: //www. circleid. com/article/804_0_1_0_C/)

Defendants’ Defenses • No factual defense • Constitutional Challenges – First Amendment – Commerce Clause • • • Personal Jurisdiction in Virginia Venue in Loudoun County Lack of proof that volumes exceeded 10, 000/day Meaning of “Falsification” and “Unsolicited” July 1, 2003 as “flag day”

Jury Verdict & Sentence • Deliberated day and a half • Jeremy Jaynes – Guilty of 3 felony spam counts – 3 years per count • Jessica Jaynes De. Groot – Guilty of 3 felony spam counts – $2, 500 fine per count • Richard Rutkowski – Not guilty

Lessons Learned • Juries understand the technology • Searches and seizures are important to preserving evidence • While difficult, “unsolicited” can be proved without testimony from recipients, via an expert • Offshore movement of bank accounts will complicate proof • The “Jessica Effect” -- spam accomplices are now more likely to “flip” • Despite public animosity against spam, jury system works well

Questions? Observations on the Jeremy Jaynes Criminal Spam Trial Jon Praed Internet Law Group jon. praed(at)i-lawgroup. com