Michael Persaud and Frank Kriticos, both of the San Diego area, are charged with three counts of disrupting computer services, doing so to cause injury and illegally using someone else's domain name. They could face up to four years and four months in jail if convicted.
Although many spamming cases are brought into civil courts, Persaud and Kriticos are believed to be the first to face criminal penalties in California in connection with sending unsolicited e-mail.
"Since law enforcement hasn't been responding to this type of crime, spammers have been operating with impunity," said San Diego County Deputy District Attorney Michael Groch, who's prosecuting the case, adding that he hasn't come across any other people facing criminal charges related to spam in the state.
The phenomenon of spam has become one of the Internet's biggest blemishes. Consumer groups, privacy advocates and Internet service providers have vocally rallied against spammers, saying the e-mail pitches overload people's in-boxes and companies' ISP networks.
Internet companies that offer e-mail have spent considerable resources to fight the problem. Giants such as AOL Time Warner's America Online have taken suspected spammers to court on civil charges, and many states have enacted legislation to fight the proliferation of spam. But some early legal tests have gone against those measures.
Courts have so far struck down two attempts by states to rein in spammers, citing inconsistencies with federal laws regulating interstate commerce. Judges in California and Washington state have ruled that some of their respective attempts at anti-spam legislation were unconstitutional.
Groch said that in this latest case, San Diego's Computer Technology Crime High-Tech Response Team was able to track the spammers because they used someone else's computers.
Under the state's anti-spamming law, it is legal to transmit spam in California if the sender puts "ADV:" in the subject line and gives the recipient a real option of unsubscribing. Failing to do so constitutes a misdemeanor. However, for the most part, those laws have not been enforced.
Persaud and Kriticos are facing felony charges for allegedly using computers owned by Veritools, a Palo Alto-based company that creates debugging software, to carry out their task. Law enforcement was first notified of the spamming incident in December, when Veritools' system crashed after tens of thousands of e-mails were rerouted through its servers.
According to prosecutors, the pair was hired by a refinancing company to find people who would be interested in its services. The e-mails, which offered refinancing services, appeared to come from a Veritools affiliate, and return messages from angry spam recipients also put a strain on the company's computer system, according to prosecutors.
The San Diego County District Attorney's office learned of the identities of Persaud and Kriticos after issuing several search warrants to the San Diego Web hosting company that appeared to be the source of the spam. The pair was arrested in February. They appeared in court earlier this week, but asked for a later date for their arraignment because they needed time to secure attorneys. The hearing has been continued until April.
Groch said the pair was "willfully ignorant" of the laws, and he hoped that a prosecution in the case would deter others from committing similar crimes.
If they are found guilty, it would be at least the second criminal conviction for a spammer in the United States. In December, an Orange County, Calif., man pleaded guilty in New York to sending millions of porn and get-rich-quick spam.
Groch said his task force, one of five in California, would only go after people who break spamming or computer security laws, not every sender of junk e-mail. "We're definitely not the spam police, so we don't want everyone who gets spam to forward it to us for prosecution," he said.
Meanwhile, several federal lawmakers are pushing new legislation that would outlaw certain junk e-mail practices. Just this week, Rep. Bob Goodlatte, R-Va., introduced the Anti-Spamming Act of 2001, which would make it illegal to forge items such as the time stamp or originating e-mail address of a spam message. Rep. Heather Wilson, R-N.M., introduced a bill containing similar anti-spam provisions last month. Many spammers try to disguise their identities so spam recipients cannot complain or remove themselves from a list.