He commited several crimes, AOL specifically chose to have him prosecuted under the
CAN-SPAM Act of 2003. My guess is for two reasons. One because it carries the harshest sentencing potential (criminal, meaning not just fines but jail time as well) and second because convictions under this act make an example. This is new highly publicised legislation, passed as a deterent more than anything else. Spammers have to be afraid, of laws that legislation like this enacts. If not, the legislation is worthless and not a springboard for passing other acts, creating more law with stricter guidelines and heftier consequences.
The problem they ran into is that the meat of the law is about fraud and deception. As in, not fully disclosing the nature or source of the good or service being presented in the email. It's alluded to in the story
"The judge, ... said it was not clear that Smathers had deceived anyone -a requirement of the new law."
No doubt he violated the terms of employment in his contract, any NDA he signed as well as non-compete contracts he agreed to. None of that is criminal however, it falls under civil law and the best they could do is take him to court and ask for damages. As for if he stole something, every
/. reader knows it is never that clear with intellectual property. He didn't steal anything from the users, because they signed away all rights to the data when they signed up, ie it was never there's in the first place they were just borrowing it from AOL, who can do with it pretty much whatever they choose, under the terms of the
User Agreement. As for if he stole anything from AOL any attorney could easily make the argurment that he in fact did not steal anything -which is criminal- he simply used the information inappropirately and profited from it, which is not criminal in this case, but again falls under civil law.
