A man accused of using EarthLink Inc. e-mail accounts to release a flood of unsolicited commercial ("spam") e-mail on the Internet has been convicted on charges of identity theft and falsifying business records, according to a statement from New York State Attorney General Eliot Spitzer.
Howard Carmack of Buffalo, New York, also known as the "Buffalo Spammer," was found guilty by a jury in Erie County, New York, on 14 counts, including charges that he stole the identity of two Buffalo-area residents, which he then used to send out more than 800 million spam messages, the attorney general's office said.
He is scheduled to be sentenced on May 27, and faces between three and seven years in prison.
The New York State case against Carmack was the first to use a new state identity theft law that makes identity theft a misdemeanor, said Brad Maione, a spokesman for the attorney general's office. Previously, identity theft was not a crime, he said.
The charges of falsifying business records stem from Carmack's changing of e-mail header information to create forged sender addresses for the spam messages, the attorney general's office said.
The criminal investigation of Carmack was a cooperative effort by the attorney general's office, the New York State Police and the U.S. Federal Bureau of Investigation's Buffalo Cyber Task Force. The criminal charges brought by New York State followed a civil case brought by EarthLink against Carmack, who an internal investigation identified as the source of a spike in spam e-mail traffic from the Buffalo area.
In that case, EarthLink accused Carmack of using the e-mail accounts set up using stolen credit card numbers to send out a flood of spam messages, often from accounts registered to family members, that advertised a variety of "get rich quick" schemes, herbal stimulants and cable television descramblers. A district court in Atlanta awarded EarthLink a US$16 million settlement against Carmack, who was then 36 years old, in May 2003.
EarthLink's abuse team manager, Mary Youngblood, testified against Carmack in the state trial, providing evidence about the methods Carmack used to send out the spam e-mail messages.
The ruling against Carmack has been devastating for his family, according to Joseph Carmack, Howard Carmack's uncle.
Carmack may have been spamming, but didn't understand the severity of the charges against him, he said in a phone interview. At one point, Howard Carmack told his mother that spamming wasn't illegal, citing newspaper reports, and that everyone on computers was doing it, the elder Carmack said.
"The (attorney general) has taken one thing and made it into something different," the uncle said, adding that he had not heard about the civil case against his nephew by EarthLink or the $16 million judgment.
Joseph Carmack, a retired mailman who lives in Angola, New York, painted a picture of a large and tight-knit family unschooled in computers and technology and torn apart by charges stemming from activity that they don't understand.
"Is he guilty? How can I say? He does know how to use computers and spam -- whatever that means," the uncle said.
The elder Carmack also took issue with local news reports that named him as a suspect in the case and one of the family members who pointed the finger at Howard Carmack, a charge he denies.
The attorney general's office declined to comment on whether Carmack was the subject of an investigation. An earlier statement from the attorney general's office when Carmack was arraigned in May 2003, makes no mention of Joseph Carmack or a statement by him about his nephew.
In a statement, EarthLink hailed the New York attorney general's office for the conviction and said that it demonstrates that "spammers who continue to send illegal emails will not escape the law."
Spammers are on notice that they can be sent to prison for their activities, in addition to being held liable for millions of dollars in damages, the company said.