updated 12/21/2004 8:31:19 PM ET 2004-12-22T01:31:19

A federal judge refused to accept a guilty plea Tuesday from a former America Online software engineer accused of stealing 92 million e-mail addresses and selling them to spammers.

Judge Alvin Hellerstein of Manhattan federal court said he was not convinced Jason Smathers, 24, had actually committed a crime under new federal “can-spam” legislation that took effect earlier this year.

Smathers, of Harpers Ferry, W.Va., planned to enter guilty pleas to charges of conspiracy and interstate transportation of stolen property. But the judge turned him away and scheduled another hearing for January.

Under a plea deal worked out with federal prosecutors, Smathers faced a potential prison term of 18 months to two years, plus fines.

The judge, who said he dropped his own AOL membership because he received too much spam, said it was not clear that Smathers had deceived anyone — a requirement of the new law.

Federal prosecutor David Siegal urged the judge to accept Smathers’ guilty plea, saying “billions and billions of unsolicited e-mails” had been sent to “people like Your Honor” because of Smathers’ conduct.

“Everybody hates spamsters, there’s no question about that,” Hellerstein said. But he added: “I’m not prepared to go ahead, Mr. Siegal. I need to be independently satisfied that a crime has been created.”

Deceptive vs. fraudulent
Smathers’ lawyer, Jay Goldberg, said the judge did not appear to be questioning the constitutionality of the “can-spam” law itself, which took effect Jan. 1.

“He is questioning whether the conduct here met the standard of deception,” he told reporters outside court. Smathers himself declined comment.

Hellerstein asked lawyers for the government to file a brief by Jan. 12 spelling out why Smathers can be prosecuted under the law -- why his conduct was deceptive, not just fraudulent.

He set a hearing for Jan. 28. Goldberg told reporters there was a chance his client would withdraw his guilty plea altogether, but said he would wait and see what the government turned in.

Authorities said Smathers, who was fired by AOL in June, used another employee's access code to steal the list of AOL customers in 2003 from its headquarters in Dulles, Va., and sold it to spammers for more than $100,000.

Court papers said Smathers sold the list to Sean Dunaway, of Las Vegas, who used it to send unwanted gambling advertisements to subscribers of AOL, the world's largest Internet provider.

Charges are still pending against Dunaway.

The stolen list of 92 million AOL addresses included multiple addresses used by each of AOL's estimated 30 million customers. It is believed to be still circulating among spammers.

The "can-spam" legislation, modeled after the government's popular do-not-call telephone list, is designed to cut down on unsolicited e-mail messages trying to sell products, from Viagra to home mortgages.

In September, a California man pleaded guilty under the "can-spam" law after federal prosecutors accused him of sending unsolicited e-mails, some for pornographic Web sites. Prosecutors said they believed the plea was the first under the act.

Copyright 2004 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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