Hawke told Bournival to lighten up. He reminded Bournival that it was just a lawsuit, not a criminal case. It was nothing more than a huge corporation complaining that someone had unfairly taken its money. The police were not involved. It wasn't about doing jail time.
But after he hung up, Hawke gave some thought to hiring his own lawyer. He knew just the guy to battle AOL. The previous December, spammers cheered when an attorney from Albo & Oblon convinced a federal court in Virginia to throw out an AOL lawsuit. AOL lost on a technicality; the judge said the court didn't have jurisdiction over the case, which involved alleged spammers in Florida. And AOL later re-filed the lawsuit in a Florida court. But the attorney from Albo & Oblon vowed he'd get that case dismissed as well. That was the kind of chutzpa Hawke wanted in a lawyer.
There was no doubt that AOL had the advantage. Not even the best defense lawyer could dispute the evidence: Hawke, Bournival, and their affiliates had obviously sent the spams. The only thing open to debate was the damage they caused to AOL. As Hawke saw it, the case would probably end up the way spammer lawsuits always did. There'd be a settlement between his lawyer and AOL's lawyers, whose goal was to take all his money, to "disgorge" his illegal profits, as they called it. AOL would also get a court injunction, saying he could never spam AOL again. AOL was just trying to make an example of him, to show the world that spamming AOL did not pay.
No way was Hawke going to give AOL that satisfaction. They could get Amazing Internet's bank records from Bournival to calculate how much Hawke had made. But they'd have to bulldoze five states to put their hands on any of the money. He'd say he lost it all gambling at Foxwoods. He'd plead poverty, and they couldn't prove otherwise.
In a way, being sued by AOL was liberating to Hawke. Now that the deterrent of a lawsuit was gone, he could spam with impunity. What was AOL going to do, sue him again? Hawke went to his computer and composed a brief ad:
Highly desirable list for sale or trade. Only the BEST addresses. Will trade for other high-quality list or AOL internal mailer.
In the "from" line of the spam, he listed his name as "Doctor Bulker." He also provided a Yahoo! email address and one of the toll-free numbers he had set up for the Phoenix Company. Then Hawke blasted the spam out to a list of 80,000 addresses he had harvested from spam sites and other "bulk-friendly" sources.
The next day, Hawke kicked his spamming into high gear. He registered a couple of new domains, including ephedrazone.com, listing [email protected] as his email address. In hopes of recruiting new RaveX affiliates, he sprayed the Internet with want-ad spams:
Sell the HOTTEST RX supplement in the country! It's called RaveX and contains 100% pure ephedra...the FDA is banning the sale of ephedra on April 12th, so people are buying it like CRAZY right now!
Hawke's spamming frenzy was short-lived, however. As word of the AOL lawsuit spread—the story made the front page of the New York Times — Spamhaus posted an entry about Hawke on the Rokso list, and his various Internet addresses were added to the Spamhaus Block List. Suddenly, many would-be customers couldn't reach his web sites. To head off further problems, Hawke and his crew emptied the 150 Main Street office in the middle of the night. But Hawke's troubles got worse a few days later when he received a call from his merchant-account contact. The deal was off. Hawke tried to negotiate, but the man just hung up and told Hawke never to call him again. Stuck without the ability to process credit card orders, Hawke scrambled to find a new merchant account. In the meantime, the Phoenix Company was relegated to accepting orders by check.
After retaining Dr. Fatburn's lawyer from Whiteford, Preston & Taylor, Bournival decided not to play any games with AOL. He just wanted the legal process to run its course as quickly as possible. AOL's attorneys served Bournival's lawyer on March 17, and soon thereafter Bournival began a series of long telephone conversations with Jennifer Archie, the Latham & Watkins lawyer who teamed with Praed on AOL's spam litigations. On his attorney's advice, Bournival cooperated fully. He didn't volunteer information, but he told Archie pretty much anything she wanted to know about Amazing Internet Products. To his surprise, instead of treating him like a criminal, she acted as if the lawsuit was just a business deal. It gave him hope that he might emerge from it all with his future intact. Maybe, if he played his hand right, he'd get to keep the Hummer and a couple hundred thousand dollars. He'd use the money to launch a new Internet business that was legal, or even become an anti-spam consultant.[10]
Archie warned Bournival that he'd be in limbo until the lawsuit was wrapped up. That could take six months, she said, or even longer if Hawke continued to be difficult.
Over ten days had passed since AOL filed the lawsuit, but the private investigator AOL hired to serve Hawke still hadn't managed to track him down. The PI knew Hawke maintained a post office box in Pawtucket, and AOL had received information that he was living in nearby North Smithfield. But without an address to go on, the PI was stuck. He hung around vegetarian restaurants in Pawtucket and Providence with a photo he had printed out from a 1999 newspaper article about Hawke. He staked out the former Phoenix Company office on Main Street. He parked on the street outside Hawke's old Crescent Road apartment, hoping to spot his black Crown Vic. He waited at the tennis courts in Slater Park on the chance that Hawke would show up for a chilly game of spring tennis.[11]
Then AOL got a tip that Hawke was renting a single-family home at an address on North Smithfield's Black Plain Road. The PI checked the deed for the property and contacted the owner. She confirmed that the man in the photo was her tenant but had signed the lease using a different name. The PI staked out the tidy colonial for two days, hoping to catch a glimpse of Hawke through the bay window. Upon returning the third day, March 23, he saw the Crown Vic in the driveway. He banged on the breezeway door and called Hawke's name but got no answer. He tried the front entrance, but still no response.
The PI pulled out his cell phone and dialed the number he had for Hawke. He heard a phone inside the house spring to life. After the phone rang three times, the PI hung up, and the ringing stopped. At that point, the PI realized it was going to be a "nail and mail" case. The PI tacked the envelope to the front door and departed.
Inside, Hawke held his breath until he saw the car drive off. Then he retrieved the documents from the front door and locked it again. He was furious that AOL had been able to serve him so quickly. Now the clock was ticking. By law, if he didn't respond within twenty days, AOL could ask the court for a default judgment.
Obviously, someone had squealed. Only Hawke's closest associates knew his home address, so that eliminated Dr. Fatburn, despite the man's obvious wish to take him down. Hawke's former partner Bournival potentially had the motivation. To keep in AOL's good graces, he was probably singing like a canary about his side of the business. But Hawke didn't think Bournival would give up Hawke's address. Brad's innocent mistakes were the cause of their legal problems, but the guy was not a total snitch. The other possibility was Margie, the girl he'd brought up from Columbia whose services he'd stopped using several weeks before out of boredom. (He was still trying to line up a new girl from South America.) But Margie didn't have the language skills to report him. Besides, she was a best friend of Liliana, and no way would they want to jeopardize Mauricio.
Then it dawned on Hawke—his mother knew his address, although she'd never been to the house. The lawsuit probably brought back for her the shame she had felt in 1999, when her hometown paper, the Boston Globe, reported that Hawke was running a neo-Nazi group. After all, she was the one who had told the Washington Post that Hawke was a "chicken," and that's why he didn't show up at the rally in Washington, D.C. She was the one who, that same year, sobbed into the phone to a reporter from Rolling Stone that she wished someone would kill him, her only son. That's the kind of mother she was, thought Hawke. If AOL's lawyers leaned on her, she'd willingly give him up.
Hawke picked up his cell phone from the table. On the screen was a message that
he had missed the call from AOL's private investigator. According to the caller ID, it was from area code 617 in Massachusetts. But the prefix—the three numbers after the area code—was new to him.
"Hello," Hawke said to the empty house. He jotted the number down on the envelope of legal papers. Later, he would use it to turn the tables and begin investigating the PI. But first, he'd use the number's area code and prefix combination to create a new mailing list for cell phone spam.[12]
* * *
[7] Bournival described the phone call during our May 10, 2004, interview.
[8] Author online interview with Mauricio Ruiz, March 17, 2004.
[9] Hawke recounted this phone call to me during our May 10, 2004, interview.
[10] Bournival mentioned these post-litigation goals in the May 10, 2004, interview.
[11] From an affidavit filed March 23, 2004, by David McLain in AOL v. Davis Hawke et al.
[12] During our May 10, 2004, interview, Hawke boasted that he had obtained the PI's cell phone records. "I feel that's my right. If someone's trying to investigate me, I'll investigate them," he said.
The Gingerbread Man
Under the rules of chess, a player can claim a draw if fifty consecutive moves occur in the match without a piece being captured or a pawn moved. Throughout the spring and early summer of 2004, Davis Hawke seemed to hope the "Fifty Moves Rule" would end his legal problems with America Online.
As AOL made a succession of maneuvers against him in Virginia's Eastern District federal court, Hawke retreated to the back streets of Pawtucket.[13] He phoned AOL's attorneys Archie and Praed a few times to ask questions about the case. But then he'd go silent and flagrantly ignore court dates. From time to time, Hawke would pop up on the Internet to send out a run of cell phone spam. After that, he'd vanish for days, apparently having generated enough cash to keep going.
Hawke had been living in a succession of motels ever since an incident the week after he received AOL's summons. Hawke had spotted AOL's private investigator in his driveway, trying to attach something to the underside of the Crown Vic. Hawke assumed it was a global-positioning-system (GPS) device for tracking him. The next day, he moved out of the Black Plain Road house and abandoned the car.[14]
The cell phone spams, especially the ones advertising mortgage refinancing, were beginning to bring in some decent cash. Hawke decided he didn't need to spam AOL, and it was a good time for a fire sale with the AOL member database. Using the alias Mark, he boldly sent his bulk-friendly mailing list a message bearing the subject line, "Super Secret Email List for Sale." The spam offered an eight-million-address list for $8,000, or sets of one million addresses for $1,500:
I'm not going to bore you with hype or games. This is simply the best email list you will ever, ever buy. This is a database of over 8 million users of THE BIGGEST online provider. You know which one! This list contains FULL MYSQL DUMPS .. which means you get not only the emails, but the address info, names, etc. That makes it easy to send personalized emails that appear to be opt-in. You will experience an unbelievable response rate from this list.
To throw AOL and other anti-spammers off his tracks, Hawke had begun registering domains under the name "Bubba Catts" and a bogus Louisiana mailing address. Later, his domain registrations included the name and address of the bank in Spartanburg, South Carolina, to which Hawke owed money. For the name of the domain's registrant, Hawke listed Thomas P. Barnum. Hawke also sprayed out tens of thousands of spams selling pirated copies of the Dark Mailer program. Hawke signed the spamware ads using the name of south-Florida spam king Eddy Marin.[15]
Hawke temporarily stopped advertising the AOL list in June 2004, after federal agents arrested two men on charges that they had stolen AOL's entire customer database in 2003 for use in spamming. Jason Smathers, a former AOL technician, and Sean Dunaway, an alleged spammer, each faced up to five years in prison and a $250,000 fine for their part in the conspiracy to misappropriate the database. Prosecutors said they cracked the case with the help of an unidentified informant. The source (Bournival) was said to be a spammer who was the subject of a 2004 AOL lawsuit. The informant had purchased a copy of the list from Dunaway and used it to sell herbal penile-enlargement pills, authorities said.
Suddenly, Hawke's endgame with AOL wasn't the only case that required his attention. Now he was potentially facing criminal charges over his brazen attempts to sell the AOL member database. Concerned that FBI agents might be following him, Hawke cut off his shoulder-length hair and shaved his head. But soon he was back on SpecialHam.com, under the username MrLucky, offering to sell an AOL address list for $6,000.
Then, at the end of June, fresh legal problems arrived. A private investigator hired by Verizon Wireless left a summons on the windshield of Jacob Brown's blue Oldsmobile while it was parked outside 40 Crescent Road in Pawtucket. (Brown had taken over Hawke's old apartment when he moved out.) The summons informed Brown that Verizon Wireless was suing him and fifty unidentified "John Does" in a New Jersey federal court. The cell phone provider accused Brown and the others of inundating its subscribers with over four million cell phone spams since March 2004.
Hawke was undaunted by the fact that he might soon be dragged into the litigation.[16] In July 2004, he spammed his bulk-friendly list with an ad that began, "Become an cellphone spammer." The spam advertised a $1,000 kit with "everything you need to start mass mailing text messages instantly." The ad, which was signed "Eddy M," included an unusual revelation as proof the offer was legitimate:
I am not a ripoff. Upon request, I can fax you a copy of the 74-page lawsuit against me by Verizon. I have been a bulker since 1996 and focused entirely on text messaging for the past six months.
A few days later, Hawke decided it was time for a breather. He drove north to his favorite spot in New Hampshire—Tuckerman's Ravine, on the southeast shoulder of Mount Washington—for a hike with Dreighton.
The summer of 2004 was shaping up as one of the coolest and rainiest on record in New England. As Hawke picked his way in a drizzle along the Lion Head trail, he contemplated leaving the country altogether for someplace warm and dry—Algiers, perhaps. Loay Samhoun, his former number-one Pinacle affiliate, had already fled to Lebanon to avoid litigation from AOL.[17]
But with almost all of his money in greenbacks, Hawke knew he had serious portability problems. Somehow, he'd need to get the cash into bank accounts, but he worried that those deposits might trigger investigations and put him at risk. Hawke figured he could disappear somewhere else in the U.S. and start over under a new identity. He could use his cash to buy and sell real estate. Or he could earn a living playing poker.
But Hawke decided to remain in Rhode Island a while longer. His only friends—Mauricio, Mike Clark, and the others—were there, and Patricia was serious about her grad school program. But something else made him want to stay put.
Hawke had tried running from failure in the past, and it got him branded a coward and a loser. This time, he wasn't going to slink out a window in the middle of the night. He was going to go down with guns blazing. He might not be the biggest spammer in history, but Hawke was going to make sure he was the most outrageous one of all time.
The mist lifted suddenly, allowing Hawke a glimpse of the Mount Washington valley below the grey ceiling of clouds. He vowed he would retire from spamming after he made a little more money. Until then, he'd stick to his credo: I'm going to be dead for a very long time. Every moment counts.
* * *
[13] In late March 2004, AOL amended its complaint to include Mauricio Ruiz and Jacob Brown and served the two men outside their homes. By late April, only Bournival had met the deadline for responding to AOL's summons. So the big ISP moved to have the court declare all the defendants, except for Bournival, in default. The judge accepted AOL's motion and scheduled a hearing to set damages for July 2004.
[14] Author telephone interview with Davis Hawke, May 10, 2004.
[15] Copies of the ads Hawke signed "Eddy
Marin" were posted to the news.admin.net-abuse.email newsgroup by recipients beginning June 30, 2004.
[16] Since the new CAN-SPAM law didn't specifically address cell-phone spam, attorneys for Verizon Wireless filed the lawsuit under the 1991 Telephone Consumer Protection Act. In addition, they accused Brown et al. of violating New Jersey's computer fraud statute. According to Verizon's complaint, the company was able to track down Brown after discovering that his cell phone number appeared in numerous spam runs. Investigators determined that Brown was using the phone as a "seed" to test whether messages were getting through Verizon's spam filters.
[17] Hawke revealed that Samhoun had left the country during our May 10, 2004, interview.
Appendix A. Epilogue
A special subcommittee of the United Nations called an urgent meeting in July 2004. The team of international experts convened in Geneva, Switzerland, to formulate battle plans against what one leader called "a disease which has spread around the world. We have an epidemic on our hands which we need to control."
The UN committee was not charged with fighting AIDS or SARS or hepatitis. The experts, all part of a working group of the UN's International Telecommunications Union (ITU), were there to defeat spam. According to the ITU, spam costs nations worldwide $25 billion each year.
Yet the international team was confident that, with the right technology and international cooperation, spam could be brought under control by 2006.
As of this writing (September, 2004), the global spam problem appears to be getting little help from CAN-SPAM. The volume of junk email hitting in-boxes has risen since the new U.S. law took effect on January 1, 2004. (Spam-filtering firm Brightmail says spam now composes 65 percent of email traffic, up from 60 percent in January.)
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