The $11 Billion Man

Internet service providers hope well-publicized cases like these — plus million- and billion-dollar civil judgments against spammers — will dissuade others from getting into the business. But McWilliams worries that they are actually having the opposite effect.

"Spammers see money being made in this marketplace, and when one spammer is felled by a big lawsuit, others step up or new guys get into the business," he says. "In fact, I think there are times when these lawsuits and stunts such as the AOL sweepstakes backfire because word gets out about how much money is to be made in this business.

"None of this deters spammers. I think it just makes them think, 'Wow, I know this is a risky business, but if I don't get caught, I get to live like a kingpin. '"

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In October 2003, Atlanta attorneys Pete Wellborn and Kelly Wallace — widely considered among the nation's leading attorneys in anti-spam cases — filed a federal lawsuit in Davenport, Iowa, representing CIS, a small Internet service provider operated out of the Clinton, Iowa, home of CIS owner Robert W. Kramer III.

Naming "John Does" as defendants, the lawsuit claimed that spammers had not only sent unsolicited commercial e-mail to CIS users but, worse, had hijacked CIS' identity. When sending out spam, the lawsuit alleged, bulk e-mailers had forged the "from" address to an @cis.net e-mail account — a common spammer tactic called "spoofing." For that reason, millions of undeliverable messages and complaints inundated CIS, slowing the company's servers and in some cases shutting them down. The spam messages supposedly from CIS included pitches for get-rich-quick schemes, Internet casinos, a pump-and-dump scheme for a penny stock, and the adult websites teen-pie.com and "Rachel's House."

Wellborn and Wallace believed that multiple spammers were responsible for the mass spoofing. By naming John Does as defendants, the lawyers were able to subpoena Internet service providers linked to the spam in order to identify them.

"In some cases, that's the only way we can identify who is behind the spam," Wallace says. "You have to look at a spammer's e-mails, look at the Internet service providers the e-mails come from, and then look at the websites those e-mails direct people to. Then, if you get a long enough chain of subpoenas, you can identify who is behind the spam."

In the CIS case, a spammer allegedly behind millions of e-mails hawking home refinancing and debt consolidation linked to the website awayoutofdebtfast.com. The spam e-mail read:

THERE IS NOTHING TO LOSE BUT YOUR FINANCIAL PROBLEMS!

YOU ARE APPROVED!

FREE UP THE CASH YOU DESERVE NOW!

Mortgage required.

No gimmicks no tricks.

In fact, the website awayoutofdebtfast.com was only a middle man that collected debtor information and sold it to actual debt-counseling companies.

To identify the spammer, Wallace looked up the registry information for awayoutofdebtfast.com. Online records indicated that the website was registered to a "J Marketing," with an address in Haiti. The administrative contact was listed as a "J.M." whose e-mail address was webgost79@yahoo.com.

Wallace then subpoenaed Yahoo! for the user information on webgost79. According to its user policy, Yahoo! notifies the account holder of any subpoena it receives and then gives the user ten days to quash the subpoena before Yahoo! turns over the information.

A few days after issuing the subpoena, Wallace says, he received a call from Miami attorney Diana Ho-Yen. Also on the line was Ho-Yen's client, who identified himself as webgost79 but would not give his real name, Wallace says.

"He was yelling at me on the phone," Wallace remembers. "Spam isn't illegal! That's what he kept saying. Spam isn't illegal!"

Ten days after issuing the subpoena, Yahoo! sent Wallace records showing that the man behind webgost79@yahoo.com was one James McCalla, whose address was listed as an apartment on NW 179th Street in Miami. (McCalla says the 79 in the e-mail address refers to 1979, the year he was born.)

Today, McCalla admits that he asked a friend's attorney to call Wallace for information about the subpoena, but McCalla denies that he participated in the phone call. Court records in Broward County indicate that Ho-Yen previously represented one of McCalla's business associates, Pembroke Pines resident Shelley-Ann Jerome, whose company, Omagus, has been accused of being a spam operation in another lawsuit filed by Wallace's firm. In that Broward case, Ho-Yen filed a small-claims action against Coral Springs-based American Debt Counseling after the company failed to pay for "debt consolidation leads."

Wallace was sure he had identified one of the "John Does" in the CIS case and added McCalla's name to the complaint. McCalla responded by announcing that he would defend himself in the Iowa federal lawsuit.

Since McCalla was in South Florida and claimed not to have the financial means to appear in court, Judge Charles R. Wolle agreed to use teleconferencing to hear the case. In his first filing with the court, dated April 20, 2004, McCalla denied all allegations that he was spamming.