This case will involve one of the first trials under the CAN-SPAM Act

So says United States District Judge David G. Campbell, in the course of denying the Defendant's Motion for a Bill of Particulars in US v. Clason, et al., D. Az. Case No. CR-05-870-PHX-DGC.  As the "CR" at the beginning of the docket number indicates, this is a criminal, and not a civil case.  You can access the court's Order denying the Motion for Bill of Particulars here (you can also access the court's Order granting in part and denying in part an omnibus Motion brought by Defendants here) [both short pdf files].

The Bill of Particulars Order is interesting because it raises the same arguments spam-defendants raise in civil cases.  Defendants are entitled to know the nature of the claims against which they are defending.  Where a fraud or misstatement underlies the claim, (in the civil context) Rule 9's particularity requirement generally requires the who, what, when and where of the alleged fraudulent statements.

Here the court denies the Defendant's Motion, noting: 

the indictment contains sufficient information regarding the allegations that Defendants transmitted spam email with materially false header and domain name registration information in a manner that would make it difficult to identify or locate the sender. For example, the indictment alleges that "the spam messages themselves failed to truthfully disclose their origin . . . or subject matter . . . and were sent from . . . addresses registered the Kingdom of the Netherlands and at least 194 domain names registered in the Republic of Mauritius."  . . . The indictment alleges that Defendants created a variety of business entities, named specifically in the indictment, to disguise the sending of spam email. Id. PP 7-8. Paragraph 12 of the indictment alleges multiple overt acts, including specific dates or date ranges during which those acts occurred, that include actions Defendants took to make it difficult for email recipients, law enforcement officials and others to identify or respond to the senders.

News flash:  sending email from an address registered in the "Kingdom of Netherlands" through "domain names registered in the Republic of Mauritius" is not illegal.  Not under CAN-SPAM and not under any other law.  Nor is creating "a variety of business entities."  (CAN-SPAM has specific provisions on registering a domain name using false information - while the court alludes to this provision in the Order it only says that the information provided by Intercosmos (a registrar) is sufficient to put Defendant on notice.  We're not sure how.)  Defendant asked for some clarification as to the government's theory of the case - i.e., "how is the government going to argue that I sent misleading emails".   The Judge's answer is basically that "they were misleading".  (The court also references the numerous ISP-complaints produced in discovery.  Given the stringent standards used by ISPs - which often do not track CAN-SPAM - these complaints are not likely to be helpful.)

Now the standard for a Bill of Particulars may be quite low on the government's side.  I'm not sure.  But in my mind, the quoted portions of the indictment should not even satisfy Rule 9 standards, which I would expect would be far less stringent than the criminal standards.  I find this somewhat odd, and potentially reflective of a trend.  Civil CAN-SPAM defendants are succeeding in their technical arguments (e.g., Mummagraphics).  Criminal CAN-SPAM defendants are not faring quite so well.   Not sure why, or what this means. 

[Minor edits added.]