By Michael E. Miller
By Allie Conti
By Keegan Hamilton and Francisco Alvarado
By Jake Rossen
By Allie Conti
By Kyle Swenson
By Chris Joseph
By Michael E. Miller
"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. '"
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!
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 firstname.lastname@example.org.
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 email@example.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.
"These accusations jeopardize my reputation, and I intend to file a countersuit with an action for defamation if these complaints against me are not rescinded," McCalla wrote.
McCalla admits today that defending himself by phone in a high-stakes civil lawsuit might seem reckless but says he didn't have a choice. "I'm in Florida, and the trial is in Iowa. I can't afford to get there," he explains. "I thought at the time: 'How can they do this? I can't afford a lawyer for $200 per hour. I have no choice. '"
Representing himself, McCalla maintained his innocence in letters to the court. He explained that his company collected leads and provided commissions to "affiliates." Those affiliates would be paid when they sent valid Internet users to McCalla's site to fill out a form requesting information about debt consolidation. His company did not perform e-mail marketing, McCalla says, and his affiliate policy "maintained strict guidelines as to the permissible avenues of affiliate marketing." Spamming was prohibited, he claimed.