The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER ON MOTIONS TO DISMISS INDICTMENT
On September 18, 2006, Defendants filed a motion seeking, among other things,*fn1 dismissal of the indictment on the basis that the statute under which they are charged, 18 U.S.C. § 1037(a)(3) and (4), is unconstitutionally vague. Defendants later supplemented their motion, asking the Court to dismiss the indictment as overbroad, and for failure to allege an essential element. At a hearing held November 20, 2006, the Court took these motions under submission. It now renders its decision.
The charges in this case stem from a large number of electronic messages sent between April and September, 2004. The Government alleges Defendant Twombly leased dedicated servers using an alias, including one server from Biznesshosting, Inc. ("Biznesshosting"). According to the Government's allegations, within approximately two hours after Biznesshosting provided Twombly with logon credentials, it began receiving complaints regarding spam electronic mail messages originating from its network. Defendants allegedly sent approximately 1 million spam electronic mail messages, followed several days later by another 1.5 million. The spam messages allegedly contained advertising for computer software, and directed recipients to the website of a software company with an address in Canada. The Government alleges this website was falsely registered under the name of a non-existent business, and that the messages' routing information and "From" lines were falsified, preventing recipients, internet service providers, and law enforcement agencies from identifying, locating, or responding to the senders. Biznesshosting allegedly investigated the complaints, traced the spam to the server leased by Defendant Twombly, and terminated his account.
The Government alleges the traffic generated by Defendant Twombly's leased server led internet-based anti-spam services to blacklist Biznesshosting's network domain, resulting in both immediate and continuing financial loss to Biznesshosting.
The Government alleges a search by the FBI uncovered approximately twenty dedicated servers leased by Defendant Twombly using false credentials. Defendant Twombly allegedly leased the servers for a man known only as "Josh," and was paid $100 for each set of logon credentials he provided to "Josh." "Josh" was allegedly later determined to be Defendant Eveloff. The Government alleges both Defendants caused the spam messages to be sent.
The relevant sections of the statute under are as follows:
§ 1037. Fraud and related activity in connection with electronic mail
(a) In general.--Whoever, in or affecting interstate or foreign commerce, knowingly --. . .
(3) materially falsifies header information in multiple commercial electronic mail messages and intentionally initiates the transmission of such messages, [or]
(4) registers, using information that materially falsifies the identity of the actual registrant, for five or more electronic mail accounts or online user accounts or two or more domain names, and intentionally initiates the transmission of multiple commercial electronic mail messages from any combination of such accounts or domain names, . . . shall be punished as provided in subsection (b).
Section 1037(d)(2) explains in part the meaning of § 1037(a)(3) and (4):
(2) Materially.--For purposes of paragraphs (3) and (4) of subsection (a), header information or registration information is materially falsified if it is altered or concealed in a manner that would impair the ability of a recipient of the message, an Internet access service processing the message on behalf of a recipient, a person alleging a violation of this section, or a law enforcement agency to identify, ...