Soloway Moves to Dismiss ID Theft Counts
Local infamous spam defendant Robert Soloway moves to dismiss identity theft charges against him. Mickey Chandler helpfully posts the documents which you can access here (defendant's motion), here (government's response), and here (reply).
At issue is whether Soloway can be charged with "aggravated identity theft". Soloway is not accused of doing anything more than engaging in a garden variety (albeit massive) spam operation. (The indictment actually contains money laundering and fraud counts, but much of the bad acts center around him allegedly sending large quantities of emails and offering email advertising services to third parties.) SpamSuite has a list of many of the case docs along with links here.
The government's argument does not seem particularly strong here. They argue that a person's email address, which Soloway is accused of using without permission is a "means of identification" which Soloway used in the course of committing another felony. Soloway argues that the government only alleges that he only used a person's email address to send email to that person (and not to third parties):
The government alleges that in those emails, Mr. Soloway replaced his (the sender's) email address in the header with the recipient's email address. Thus, for example, if the email was sent to "[email protected]" , the header would show "From: [email protected]; To: [email protected]" instead of "From: [email protected]; To: [email protected]." This was typically done in order to try to circumvent a spam filter. The recipient obviously knew that she did not send the email to herself, and once the email was opened--if it was opened--the email clearly informed the recipient of the sender's website address. An example of an email allegedly sent by defendant is attached hereto as Exhibit A. As can be seen from the exhibit, the header reads "From: Sales@dalem***r.com; To: Sales@dalem***r.com."
Soloway's other argument is that the conduct at issue is already covered by CAN-SPAM and is alleged by the government in another count of the indictment. I don't know how likely courts are to dismiss counts in the criminal context. In the civil context, there's not much loss to the parties (particularly in a situation where all of the claims are closely factually related) from letting some claims go forward and dealing with them at the summary judgment stage. Maybe the considerations in the criminal context are different. Whatever the answer to that question, Soloway certainly makes some persuasive arguments. The briefs are well worth reading.
As to whether Soloway's arrest will lead to a "sharp" drop in illegal email . . . we're still waiting.
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