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In the Sisyphean battle against spam, in-house lawyers are the unsung heroes. At the nation’s largest Internet service providers (ISPs), staff attorneys cancel the accounts of spammers, send cease-and-desist letters if they know a miscreant’s location, do gumshoe detective work if they don’t, and file suits to drive the pests into submission. Although the continuing deluge of offers for printer cartridges and herbal Viagra might suggest otherwise, the ISPs are making some headway. David Baker, vice president of law and public policy at EarthLink Inc., says that his company has brought more than 100 spammers to court in the last few years. In May, one of EarthLink’s most determined manhunts paid off when it won a $16.4 million award against Howard Carmack. The “Buffalo Spammer” � based in upstate New York � sent 825 million pieces of spam from fraudulent EarthLink accounts. Baker was especially pleased with the scope of the state judge’s ruling. “Just as important as the money, we were able to get injunctive relief so that [Carmack] is barred from not only sending spam on our network, but on every other ISP network,” says Baker. One spammer down, however, leaves plenty still to go. According to Brightmail Inc., a San Francisco-based spam prevention company, unsolicited advertisements have gone from 8 percent of all e-mail in 2001 to 45 percent in 2003. ISPs have had to engage in an expensive expansion of their storage and bandwidth infrastructure to handle the tidal wave. Consultants at San Francisco-based Ferris Networks Inc. estimate that ISPs spend about $500 million annually in the battle against unwanted e-mail; all U.S. businesses combined shell out an amazing $10 billion. But although spam may be omnipresent, spammers are practically invisible, and simply finding them takes a tremendous amount of work. Faced with limited resources and higher priorities, government agencies and prosecutors have done little so far. As a result, in-house attorneys at EarthLink, the Microsoft Corp., America Online Inc., and Yahoo! Inc. have been forced to take up the slack. Six of the nine lawyers in Microsoft’s enforcement division now spend at least half their time fighting spam, says senior corporate attorney Timothy Cranton. EarthLink’s Baker notes that in the past two years, his company has tripled the number of in-house lawyers devoted to spam, to six (the law department has a total of 12 attorneys). Yahoo! and AOL declined to comment for this article. But according to Virginia assistant attorney general Lisa Hicks-Thomas, AOL was instrumental in getting her state to adopt the nation’s first antispam criminal statute in April. The ISPs “have been leading the charge against spam,” says Jason Catlett, president of the Junkbusters Corp., a New Jersey-based privacy advocacy firm. In particular, he cites five lawsuits that AOL brought in April against more than a dozen spammers, collectively responsible for more than a billion spam e-mails. In a press release at the time, AOL Time Warner Inc. General Counsel Randall Boe called spammers “public enemy number one.” A GREAT PLACE TO HIDE But as Microsoft recently found out, nailing a spammer can be complicated, and success isn’t always guaranteed. In February the company filed suit against Boris Mizhen, who it claims is a particularly outrageous spammer. (Mizhen denies the allegations.) But it took a five-month manhunt before Cranton and his colleagues even knew whom they were going after. The investigation started last October, when Microsoft’s internal audit systems detected a user of the company’s Hotmail e-mail service who had found a way to evade software that blocks individuals from sending high volumes of outgoing mail. The user had opened up thousands of Hotmail accounts and then sent millions of messages to AOL addresses. Lawyers at Microsoft and AOL first tried to follow the spam’s transmission trail. But the crafty spammer had routed his messages through an open proxy server in Russia, meaning that the “From:” line no longer identified him as the sender. Cranton next purchased some software from the spammer, thinking that the culprit’s credit card processing information might yield a clue. No dice; the spammer had registered his credit information under a false name and address. Finally, another strategy did the trick. Cranton purchased some get-rich-quick literature from the spammer that listed a real physical address in Connecticut. By this point, Microsoft had enough identifying details to file a so-called John Doe suit against the spammer, and in the ensuing discovery, the company pinpointed Mizhen. “Microsoft is in the early stages of discovery to determine the scope of the problem and the level of Mr. Mizhen’s involvement,” the company says in a statement. But Jeffrey Grant, Mizhen’s Seattle-based attorney, maintains that Microsoft’s allegations against his client are “all damnable lies.” Grant adds, “The person who really sent the spam, from what I gather, is a foreign national who lives in Russia by the name of Vitaly.” For all its impressive sleuthing, Microsoft’s hunt may not be over yet. Eriq Gardner is a staff reporter at Corporate Counsel, an American Lawyer Media magazine published in New York City.

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