Spam Kings

by McWilliams, Brian S

  Uy submitted an official request to Tripod appealing the shutdown, and then he posted a message to Nanae.

  "Dr. Fatburn knocked down my Tripod site," he announced. "Looks like he's got at least three or four neurons in his little head. Anyone have an inside contact at Tripod who could restore my site?"

  Uy never managed to convince Tripod to reinstate his service. But as often happens when Internet users encounter censorship, several mirror copies of Uy's site suddenly appeared on other domains. Uy also set up his own mirror at the Geocities home page service, which Dr. Fatburn was unable to get shut down. As a result, while the world was preoccupied with the U.S. military invasion of Iraq, Fatburn was forced to ratchet up his threats against Uy.

  On March 26, Uy received a phone call from the Computer Crimes Unit of the Maryland Police. An officer informed him that Dr. Fatburn was leaning on police to charge him as an accomplice to harassment. The officer suggested that a State Attorney might take up the case if Uy didn't remove his site.

  Uy's lawyer had advised him that Fatburn's case was weak and would be deemed frivolous by any court. But Uy didn't cherish the idea of being led off in handcuffs. Ten years ago, before he was a family man, he might have stoically allowed himself to become a martyr over spam. But, as Uy posted in a message that evening to Suespammers, an Internet mailing list, his wife had made clear that her reaction would be chilly if he got himself arrested.

  "We have a nice couch, but I'd rather not sleep on it," he wrote.

  Uy made a call to the State Attorney's office and managed to convince prosecutors to hold off filing criminal charges against him. But he didn't realize that Dr. Fatburn was also pursuing a civil case against him. As Uy was eating dinner with his family on the evening of March 31, a deputy from the local sheriff's office knocked on the door. The deputy handed Uy a Petition of Peace order and a notice to appear in an Anne Arundel County district court a week later. Normally used to restrain spouse abusers, the order prohibited Uy from going near Moore or his property. But it did not require him to take down his web site.

  On the morning of April 7, Uy met his attorney, Jon Biedron, at the Glen Burnie courthouse. Although they were confident of their legal position, Uy and Biedron had some doubts. Typically, the district courthouse was a venue for adjudicating things like driving violations or family disputes, with cases usually lasting less than ten minutes. How would a judge in one of the lowest courts in the land handle a First Amendment case involving the Internet?

  Judge Robert Wilcox began by questioning Dr. Fatburn about why he filed the complaint against Uy. After showing the judge a printout of Uy's web site, Fatburn argued that the posting of his personal contact information might look harmless, but it was inciting others to harass him.[6]

  "The whole idea behind that web site is that I am a company that people in his anti-spam community should take notice of and take action against," said Fatburn. He then held up a stack of invoices and said anti-spammers were responsible for signing him up for subscriptions to book clubs and dozens of magazines.

  "As a direct result of this guy over here's actions," said Fatburn, gesturing to Uy, "we actually fear for our lives."

  After listening to Dr. Fatburn for about ten minutes, Judge Wilcox seemed ready to issue his ruling.

  "I don't need to hear [Uy's] counsel. I know what he's going to say. Doesn't [Uy] have a Constitutional right here? You're asking me to stop him from posting stuff on the Internet," said the judge. He noted that the harassment Dr. Fatburn was experiencing was potentially illegal, "but to say that [Uy] is doing it, simply by providing identifying information...that's where I'm having the trouble."

  Fatburn's attorney, Cheryl Asensio, sought to shift the momentum of the conversation. She asserted that Uy had personally made harassing telephone calls and sent packages to her client. But when the judge asked whether she had proof of those claims, she admitted she didn't.

  "Then how can I pass an order?" asked Judge Wilcox. "Isn't the burden on you to provide clear and convincing evidence? If you tell me you don't know who did it, we don't even get to first base," he said.

  "I didn't get him to admit on the stand that he's done it, but it's certainly in his statements," argued Asensio.

  "Do you want to call him as a witness?" offered the judge.

  Asensio hesitated briefly. "May I call my client first?" she asked.

  "Sure," answered the judge.

  Until this point, twenty-five minutes into the hearing, Uy and his attorney felt they had a slum-dunk case going. But now it looked as though Dr. Fatburn was going to milk his day in court for all it was worth.

  Indeed, for nearly an hour, Asensio questioned Dr. Fatburn in detail about the harassment he had undergone and Uy's alleged role in it. Her questions to Fatburn frequently caused objections from Biedron that were sustained by the judge. The whole proceeding, taking place before a nearly empty courtroom, had the air of a law school mock trial.

  Finally, it was Biedron's turn to cross-examine Fatburn. He began by asking Fatburn whether he recalled posting his name, address, cell phone number, and photograph at one of his business web sites.

  "It's contact information for my customers," answered Fatburn.

  "So, that's a yes?"

  "That's a yes."

  When Biedron was through questioning Dr. Fatburn a few minutes later, Asensio called Uy to testify. She began by asking why Uy had contacted the Washington Post, which the day before had published an article about his dispute with Dr. Fatburn.

  "I wanted people to know about the case," said Uy.

  "Do you want Mr. Moore's business to stop?"

  "I'd like him to do business differently," he replied.

  At one point, Asensio tried to bolster her claim that Uy was directly involved in harassing Dr. Fatburn. She asked Uy, who was under oath, whether he ever ordered magazine subscriptions over the Internet for anyone else.

  "I've sent people some gifts," said Uy.

  "Any to Mr. Moore?" asked Asensio.

  "No."

  "Have you ever ordered books on tape?"

  "No."

  As Asensio concluded her twenty-minute interrogation of Uy, Judge Wilcox said he had a question.

  "How did you get [Moore's] unlisted phone number?"

  "As far as I know, it wasn't unlisted. He's got it published on a couple of his web sites," answered Uy.

  "All the numbers that you listed were discoverable by the public?" asked the judge.

  "Yeah, I just went on the web and looked them up and there it was," said Uy.

  Judge Wilcox had heard enough. As the hearing approached the two-hour mark, he said he was ready to rule on the case.

  "What we have here is a petitioner who is aggrieved, and rightly so," said the judge. "But I think he has the wrong target. Clearly, if we could identify the persons ordering these magazines or making these phone calls, this court would have little hesitation granting the requested relief or enforcing any sanctions. But I cannot find from the evidence that Mr. Uy did anything wrong. He did something that Mr. Moore doesn't like, but that's not the same thing. So I will deny the petition for the domestic order."

  With that, the hearing was over. Uy and Dr. Fatburn separately left the courtroom without so much as a nod of the head toward the other. That afternoon, Uy celebrated the decision by posting a note at Slashdot.org, a popular discussion site that refers to itself as "News for nerds." Uy briefly recounted the court hearing and concluded with a note about Dr. Fatburn:

  [He] tried to send me a message, and wanted to make an example of me. Instead, I had a message for him: every time you try to mess with me, I will post it on the 'net, and more people will learn about you. I don't encourage harassment against you, and I don't need to. The facts speak quite loudly enough. Your best option is to crawl back under a rock and suck it up, or move to some state other than the one I live in.

  Dr. Fatburn returned to his home office determined to appeal the court's ruling. To him, the cas
e strongly paralleled a recent one involving the operators of a web site that encouraged attacks on operators of abortion clinics. In Dr. Fatburn's case, Uy had made no obvious appeals for antis to attack him. But Dr. Fatburn believed the proof was out there somewhere.

  Still smarting from his courtroom defeat, Dr. Fatburn was hit with much bigger legal troubles a week later. On April 15, 2003, Symantec filed a lawsuit against Dr. Fatburn in a federal district court for Central California. In its complaint, Symantec accused Dr. Fatburn of trademark and copyright infringement, unfair competition, and false advertising, among other charges. The software firm asked the court to stop Fatburn from marketing any products bearing Symantec trademarks and to force him to pay compensatory and punitive damages.

  The same day, America Online filed a separate suit against Dr. Fatburn. AOL's lawsuit, filed by the firm's outside counsel Jon Praed, focused on the spams sent by Fatburn and his affiliates, which included numerous unidentified "John Doe" defendants. AOL accused Dr. Fatburn and his henchmen of violating Virginia business and computer crime statutes when they sent its members millions of fraudulent ads for everything from diet pills and herbal Viagra to anti-virus software. AOL claimed the messages typically listed false information in their headers in order to conceal their senders' true addresses. AOL's complaint asked a federal court in Virginia to prohibit Dr. Fatburn and his affiliates from sending ads to AOL subscribers and to compel him to pay damages.

  As soon as he found out about the double-barreled lawsuits against him, Dr. Fatburn knew his days as an email marketer were over. And when they read about the lawsuits against their former business partner, Davis Hawke and Brad Bournival realized their days were probably numbered as well.

  * * *

  [3] The conversation that follows is from a July 28, 2002, chat log published by Shiksaa on Nanae November 30, 2002.

  [4] Shiksaa posted an excerpt of the December 4, 2002, exchange on Nanae the same day. It also became a signature line in her newsgroup postings for the following three months.

  [5] Shikaa published a copy of her February 25, 2003, AIM log on Nanae.

  [6] The details of these court proceedings were transcribed from an audio recording provided by the Clerk of the Circuit Court for Anne Arundel County.

  Chapter 9.

  The Shiksaa Shakedown

  A ringing telephone roused Shiksaa from her sleep one night in late December 2002. According to her bedside clock, it was four in the morning. But she fumbled for the phone and answered, worried that it might wake her 80-year-old father who lived with her and was quite frail.

  "Hello?" she mumbled into the phone.[1]

  "Is this Susan?" asked the unfamiliar male voice on the other end.

  "Yes, it is," she replied, at once relieved and annoyed.

  "Hey, it's Bill Waggoner."

  Shiksaa's grogginess instantly disappeared. "How the hell did you get this number?" she demanded. It was an unlisted number that she gave out to very few people, none of whom were spammers.

  "Someone just IM'ed it to me. I wanted to see if it really was your number," replied Waggoner, a Las Vegas-based junk emailer who had been on the Spamhaus Register of Known Spam Operations (Rokso) since it began in 2000.

  Shiksaa sat up in bed. "You idiot. Do you realize it's four in the morning? Don't ever call this number again, or I'll call the police," she snarled. Then she hung up. She tried to get back to sleep, but she was struggling to understand how the unlisted number had gotten into circulation. Only one explanation made sense. She had recently phoned Scott Richter, head of OptInRealBig LLC, using the line. He must have captured the number with caller ID.

  The next day, Shiksaa contacted SBC and got a new unlisted phone number. A customer service representative recommended that she file a police report about the call. Later, she tracked down Waggoner over AIM and confronted him.

  "I know who gave you my phone number. Scott Richter himself," she said.

  "Yeah, so what's that have to do with anything?" replied Waggoner. "So I called your ass at four a.m. So?"[2]

  Shiksaa had been double-crossed. Since early 2002, she and Richter had conversed frequently over AIM. At one point, Richter became her underground informant, passing along dirt he had discovered about other spammers. In May 2002, he even gave her the login information to his account at the Bulk Barn spammers club. ("Merry Christmas" he said in handing her his username and password.) In exchange, Shiksaa invited him to hang out in the #Spews Internet relay chat (IRC) channel, where she and other anti-spammers conversed about their battles with junk email.

  Despite her new rapport with Richter, Shiksaa remained cautious. While he seemed truly interested in going legit, Richter still had one foot on the dark side of spamming. In July 2002, Shiksaa discovered that Richter was in cahoots with Florida junk emailer Eddy Marin, whom she considered one of the most egregious spammers on Rokso. Richter hadn't disclosed the deal to Shiksaa. Instead, it came out after anti-spammers stumbled upon an open directory on a web server operated by Marin's company, OptIn Services. The server exposed several megabytes of confidential business information, including invoices and correspondence.

  In quickly shuffling through some of Marin's files, Shiksaa found email from Dustin Parker, the 16-year-old head of technology for Richter's Colorado-based OptInRealBig.com. In the message, Parker was making arrangements with Marin's brother, Denny, to host Bodyimprover.com, one of Richter's diet pill sites.

  When she confronted him about it, Richter had explained to Shiksaa that he was forced to make deals with the likes of Eddy Marin because no other Internet service providers would do business with him. Richter blamed Spews and Spamhaus blacklists for his inability to line up other providers.

  A month later, in August of 2002, Richter posted the latest in a series of requests to be delisted from Spews. In a conciliatory message to anti-spammers on Nanae, Richter said that his history as a junk emailer might make it hard for him to get off spam blacklists.

  "I consider using the Internet a privilege and do not take it for granted," wrote Richter. He added a tip of the hat to Shiksaa for helping him clean up his act.

  "Susan has been very generous in giving me her time and assistance. Even though she doesn't have to, she does all of this as a volunteer to me," he said.

  Shiksaa acknowledged Richter's comment by saying she was always happy to try to help someone who was trying to help himself.

  "Good luck, Scott," she concluded.

  Later that August, Richter had tipped off Shiksaa that Bill Waggoner was trying to figure out her true identity. After getting a promise from Shiksaa that she wouldn't divulge the information, Richter cut and pasted portions of an AIM conversation he was having at the same time with Waggoner.

  "I found out something about Shiksaa. Really interesting," Waggoner told Richter. According to Waggoner, he had discovered that Shiksaa worked as a reporter for CNN.

  "Got her social security number," Waggoner boasted.

  "Want me to ask him any thing else, before I pass out laughing?" Richter asked Shiksaa.

  "Yes," she replied. "Ask him if he has a thing for me like you do," she said, inserting a smiley-face emoticon to show she was only kidding.

  "I'm trying to be serious about this," said Richter. Then he pasted another snippet of the log of his simultaneous conversation with Waggoner.

  "If I sue, they are going to come here. Even Linford. I can sue him even if he's in Finland," Waggoner had told Richter, referring to Spamhaus's London-based director Steve Linford, whom Waggoner appeared to believe was living in Finland.

  Like a lot of the spammer intel Richter relayed to Shiksaa, the information about Waggoner was nothing she hadn't heard before. Earlier that summer, Waggoner had contacted her over AIM and threatened to sue her if she didn't remove his record from Rokso.

  "I am researching you and all of the guys who run that right now, and I am close to finding out the goods on everyone. Before I take you guys down hard, I am trying to be polite,
" Waggoner had said.

  "Don't threaten me, ass-wipe," replied Shiksaa.

  "It's not a threat. I've already got investigators on your scene, finding your assets, etc."

  "You couldn't find your ass if you had a search warrant, flashlight, and a road map," said Shiksaa.

  "You really think you're dealing with a moron here, eh?" he asked. "Lady, this can be easy or hard."

  "Go away, Billy Bob," was her response.

  But Waggoner continued to press the issue.

  "I am going to be driving your car, owning your house," he said. "Shiksaa, take my record down and everything will be fine for you."

  Although she disliked having to cut off the lines of communication with spammers, Shiksaa had used AIM's "block" feature to prevent Waggoner from contacting her further. Weeks went by, and he still didn't deliver on his threat to sue her.

  Meanwhile, Richter had some legal problems of his own. Unknown to anti-spammers, in August 2002 Richter had been charged by the Colorado attorney general with eight counts of theft. The charges resulted after Richter bought large supplies of stolen cigarettes and other hot items from a Denver undercover policeman between December 1999 and July 2001. Detectives believed that Richter and a business associate were involved in a fencing operation. Richter, who was still running the Colorado Sports Café at the time, claimed he intended to use the cigarettes in his vending machines. He made several trips into one of Denver's grittiest neighborhoods in his Lexus sport-utility vehicle to make the buys.

  On January 2, 2003, Richter pled guilty in Adam County District Court to a single count of conspiring to commit theft. He was sentenced to pay nearly $40,000 in restitution and was placed on probation for two years. The court also ordered Richter to perform forty hours of community service. The settlement went unpublicized at the time, but in an article that appeared in Denver's Westword newspaper a year later, a detective with the city's antifencing unit called Richter "one of the best crooks I know." Richter claimed the episode was a clear case of entrapment.