Dr. Fatburn had touched a nerve. Uy's wife, a doctor, had always tolerated Uy's spam
fighting, but she didn't like it intruding on their personal lives. Still, Uy held his
ground with Fatburn and refused to take down his site.
After the phone call ended in a stalemate, Uy contacted his lawyer for advice. Uy was
certain the First Amendment protected his site, but he wanted to be sure.
Lycos, which operated the Tripod home page service, wasn't going to wait around for
legal lightning to strike. Responding to a complaint from Dr. Fatburn, on March 5, 2003,
Lycos disconnected Uy's site. According to the company, Uy had violated Tripod's Terms and
Conditions of Use, which gave Lycos the ability to terminate any site "for any reason or for
no reason at all, in Lycos's sole discretion, without prior notice."
Uy submitted an official request to Tripod appealing the shutdown, and then he posted a
message to Nanae.
"Dr. Fatburn knocked down my Tripod site," he announced. "Looks like he's got at least
three or four neurons in his little head. Anyone have an inside contact at Tripod who could
restore my site?"
Uy never managed to convince Tripod to reinstate his service. But as often happens when
Internet users encounter censorship, several mirror copies of Uy's site suddenly appeared on
other domains. Uy also set up his own mirror at the Geocities home page service, which Dr.
Fatburn was unable to get shut down. As a result, while the world was preoccupied with the
U.S. military invasion of Iraq, Fatburn was forced to ratchet up his threats against
Uy.
On March 26, Uy received a phone call from the Computer Crimes Unit of the Maryland
Police. An officer informed him that Dr. Fatburn was leaning on police to charge him as an
accomplice to harassment. The officer suggested that a State Attorney might take up the case
if Uy didn't remove his site.
Uy's lawyer had advised him that Fatburn's case was weak and would be deemed frivolous
by any court. But Uy didn't cherish the idea of being led off in handcuffs. Ten years ago,
before he was a family man, he might have stoically allowed himself to become a martyr over
spam. But, as Uy posted in a message that evening to Suespammers, an Internet mailing list,
his wife had made clear that her reaction would be chilly if he got himself arrested.
"We have a nice couch, but I'd rather not sleep on it," he wrote.
Uy made a call to the State Attorney's office and managed to convince prosecutors to
hold off filing criminal charges against him. But he didn't realize that Dr. Fatburn was
also pursuing a civil case against him. As Uy was eating dinner with his family on the
evening of March 31, a deputy from the local sheriff's office knocked on the door. The
deputy handed Uy a Petition of Peace order and a notice to appear in an Anne Arundel County
district court a week later. Normally used to restrain spouse abusers, the order prohibited
Uy from going near Moore or his property. But it did not require him to take down his web
site.
On the morning of April 7, Uy met his attorney, Jon Biedron, at the Glen
Burnie
courthouse. Although they were confident of their legal position, Uy and
Biedron had some doubts. Typically, the district courthouse was a venue for adjudicating
things like driving violations or family disputes, with cases usually lasting less than ten
minutes. How would a judge in one of the lowest courts in the land handle a First Amendment
case involving the Internet?
Judge Robert Wilcox began by questioning Dr. Fatburn about why he filed the complaint
against Uy. After showing the judge a printout of Uy's web site, Fatburn argued that the
posting of his personal contact information might look harmless, but it was inciting others
to harass him.
[
6
]
"The whole idea behind that web site is that I am a company that people in his anti-spam
community should take notice of and take action against," said Fatburn. He then held up a
stack of invoices and said anti-spammers were responsible for signing him up for
subscriptions to book clubs and dozens of magazines.
"As a direct result of this guy over here's actions," said Fatburn, gesturing to Uy, "we
actually fear for our lives."
After listening to Dr. Fatburn for about ten minutes, Judge Wilcox seemed ready to issue
his ruling.
"I don't need to hear [Uy's] counsel. I know what he's going to say. Doesn't [Uy] have a
Constitutional right here? You're asking me to stop him from posting stuff on the Internet,"
said the judge. He noted that the harassment Dr. Fatburn was experiencing was potentially
illegal, "but to say that [Uy] is doing it, simply by providing identifying
information...that's where I'm having the trouble."
Fatburn's attorney, Cheryl Asensio, sought to shift the momentum of the conversation.
She asserted that Uy had personally made harassing telephone calls and sent packages to her
client. But when the judge asked whether she had proof of those claims, she admitted she
didn't.
"Then how can I pass an order?" asked Judge Wilcox. "Isn't the burden on you to provide
clear and convincing evidence? If you tell me you don't know who did it, we don't even get
to first base," he said.
"I didn't get him to admit on the stand that he's done it, but it's certainly in his
statements," argued Asensio.
"Do you want to call him as a witness?" offered the judge.
Asensio hesitated briefly. "May I call my client first?" she asked.
"Sure," answered the judge.
Until this point, twenty-five minutes into the hearing, Uy and his attorney felt they
had a slum-dunk case going. But now it looked as though Dr. Fatburn was going to milk his
day in court for all it was worth.
Indeed, for nearly an hour, Asensio questioned Dr. Fatburn in detail about the
harassment he had undergone and Uy's alleged role in it. Her questions to Fatburn frequently
caused objections from Biedron that were sustained by the judge. The whole proceeding,
taking place before a nearly empty courtroom, had the air of a law school mock trial.
Finally, it was Biedron's turn to cross-examine Fatburn. He began by asking Fatburn
whether he recalled posting his name, address, cell phone number, and photograph at one of
his business web sites.
"It's contact information for my customers," answered Fatburn.
"So, that's a yes?"
"That's a yes."
When Biedron was through questioning Dr. Fatburn a few minutes later, Asensio called Uy
to testify. She began by asking why Uy had contacted the
Washington
Post
, which the day before had published an article about his dispute with Dr.
Fatburn.
"I wanted people to know about the case," said Uy.
"Do you want Mr. Moore's business to stop?"
"I'd like him to do business differently," he replied.
At one point, Asensio tried to bolster her claim that Uy was directly involved in
harassing Dr. Fatburn. She asked Uy, who was under oath, whether he ever ordered magazine
subscriptions over the Internet for anyone else.
"I've sent people some gifts," said Uy.
"Any to Mr. Moore?" asked Asensio.
"No."
"Have you ever ordered books on tape?"
"No."
As Asensio concluded her twenty-minute interrogation of Uy, Judge Wilcox said he had a
question.
"How did you get [Moore's] unlisted phone number?"
"As far as I know, it wasn't unlisted. He's got it published on a couple of his web
sites," answered Uy.
"All the numbers that you listed were discoverable by the public?" asked the
judge.
"Yeah, I just went on the web and looked them up and there it was," said Uy.
Judge Wilcox had heard enough. As the hearing approached the two-hour mark, he said he
was ready to rule on the case.
"What we have here is a petitioner who is aggrieved, and rightly so," said the judge.
"But I think he has the wrong target. Clearly, if we could identify the persons ordering
these magazines or making these phone calls, this court would have little hesitation
granting the requested relief or enforcing any sanctions. But I cannot find from the
evidence that Mr. Uy did anything wrong. He did something that Mr. Moore doesn't like, but
that's not the same thing. So I will deny the petition for the domestic order."
With that, the hearing was over. Uy and Dr. Fatburn separately left the courtroom
without so much as a nod of the head toward the other. That afternoon, Uy celebrated the
decision by posting a note at Slashdot.org, a popular discussion site that refers to itself
as "News for nerds." Uy briefly recounted the court hearing and concluded with a note about
Dr. Fatburn:
[He] tried to send me a message, and wanted to make an example of me. Instead, I had a
message for him: every time you try to mess with me, I will post it on the 'net, and more
people will learn about you. I don't encourage harassment against you, and I don't need
to. The facts speak quite loudly enough. Your best option is to crawl back under a rock
and suck it up, or move to some state other than the one I live in.
Dr. Fatburn returned to his home office determined to appeal the court's ruling. To him,
the case strongly paralleled a recent one involving the operators of a web site that
encouraged attacks on operators of abortion clinics. In Dr. Fatburn's case, Uy had made no
obvious appeals for antis to attack him. But Dr. Fatburn believed the proof was out there
somewhere.
Still smarting from his courtroom defeat, Dr. Fatburn was hit with much bigger legal
troubles a week later. On April 15, 2003, Symantec filed a lawsuit against Dr. Fatburn in a
federal district court for Central California. In its complaint, Symantec accused Dr.
Fatburn of trademark and copyright infringement, unfair competition, and false advertising,
among other charges. The software firm asked the court to stop Fatburn from marketing any
products bearing Symantec trademarks and to force him to pay compensatory and punitive
damages.
The same day, America Online filed a separate suit against Dr. Fatburn. AOL's lawsuit,
filed by the firm's outside counsel Jon Praed, focused on the spams sent by Fatburn and his
affiliates, which included numerous unidentified "John Doe" defendants. AOL accused Dr.
Fatburn and his henchmen of violating Virginia business and computer crime statutes when
they sent its members millions of fraudulent ads for everything from diet pills and herbal
Viagra to anti-virus software. AOL claimed the messages typically listed false information
in their headers in order to conceal their senders' true addresses. AOL's complaint asked a
federal court in Virginia to prohibit Dr. Fatburn and his affiliates from sending ads to AOL
subscribers and to compel him to pay damages.
As soon as he found out about the double-barreled lawsuits against him, Dr. Fatburn knew
his days as an email marketer were over. And when they read about the lawsuits against their
former business partner, Davis Hawke and Brad Bournival realized their days were probably
numbered as well.
[
3
]
The conversation that follows is from a July 28, 2002, chat log published by Shiksaa
on Nanae November 30, 2002.
[
4
]
Shiksaa posted an excerpt of the December 4, 2002, exchange on Nanae the same day.
It also became a signature line in her newsgroup postings for the following three
months.
[
5
]
Shikaa published a copy of her February 25, 2003, AIM log on Nanae.
[
6
]
The details of these court proceedings were transcribed from an audio recording
provided by the Clerk of the Circuit Court for Anne Arundel County.
A ringing telephone roused Shiksaa from her sleep one night in late December 2002.
According to her bedside clock, it was four in the morning. But she fumbled for the phone
and answered, worried that it might wake her 80-year-old father who lived with her and was
quite frail.
"Hello?" she mumbled into the phone.
[
1
]
"Is this Susan?" asked the unfamiliar male voice on the other end.
"Yes, it is," she replied, at once relieved and annoyed.
"Hey, it's Bill Waggoner."
Shiksaa's grogginess instantly disappeared. "How the hell did you get this number?" she
demanded. It was an unlisted number that she gave out to very few people, none of whom were
spammers.
"Someone just IM'ed it to me. I wanted to see if it really was your number," replied
Waggoner, a Las Vegas-based junk emailer who had been on the Spamhaus Register of Known Spam
Operations (Rokso) since it began in 2000.
Shiksaa sat up in bed. "You idiot. Do you realize it's four in the morning? Don't ever
call this number again, or I'll call the police," she snarled. Then she hung up. She tried
to get back to sleep, but she was struggling to understand how the unlisted number had
gotten into circulation. Only one explanation made sense. She had recently phoned Scott
Richter, head of OptInRealBig
LLC, using the line. He must have captured the number with caller ID.
The next day, Shiksaa contacted SBC and got a new unlisted phone number. A customer
service representative recommended that she file a police report about the call. Later, she
tracked down Waggoner over AIM and confronted him.
"I know who gave you my phone number. Scott Richter himself," she said.
"Yeah, so what's that have to do with anything?" replied Waggoner. "So I called your ass
at four a.m. So?"
[
2
]
Shiksaa had been double-crossed. Since early 2002, she and Richter had conversed
frequently over AIM. At one point, Richter became her underground informant, passing along
dirt he had discovered about other spammers. In May 2002, he even gave her the login
information to his account at the Bulk Barn spammers club. ("Merry Christmas" he said in
handing her his username and password.) In exchange, Shiksaa invited him to hang out in the
#Spews Internet relay chat (IRC) channel, where she and other anti-spammers conversed about
their battles with junk email.
Despite her new rapport with Richter, Shiksaa remained cautious. While he seemed truly
interested in going legit, Richter still had one foot on the dark side of spamming. In July
2002, Shiksaa discovered that Richter was in cahoots with Florida junk emailer Eddy Marin,
whom she considered one of the most egregious spammers on Rokso. Richter hadn't disclosed
the deal to Shiksaa. Instead, it came out after anti-spammers stumbled upon an open
directory on a web server operated by Marin's company, OptIn Services. The server exposed
several megabytes of confidential business information, including invoices and
correspondence.
In quickly shuffling through some of Marin's files, Shiksaa found email from Dustin
Parker, the 16-year-old head of technology for Richter's Colorado-based OptInRealBig.com. In
the message, Parker was making arrangements with Marin's brother, Denny, to host
Bodyimprover.com, one of Richter's diet pill sites.
When she confronted him about it, Richter had explained to Shiksaa that he was forced to
make deals with the likes of Eddy Marin because no other Internet service providers would do
business with him. Richter blamed Spews and Spamhaus blacklists for his inability to line up
other providers.
A month later, in August of 2002, Richter posted the latest in a series of requests to
be delisted from Spews. In a conciliatory message to anti-spammers on Nanae, Richter said
that his history as a junk emailer might make it hard for him to get off spam
blacklists.
"I consider using the Internet a privilege and do not take it for granted," wrote
Richter. He added a tip of the hat to Shiksaa for helping him clean up his act.
"Susan has been very generous in giving me her time and assistance. Even though she
doesn't have to, she does all of this as a volunteer to me," he said.
Shiksaa acknowledged Richter's comment by saying she was always happy to try to help
someone who was trying to help himself.
"Good luck, Scott," she concluded.
Later that August, Richter had tipped off Shiksaa that Bill Waggoner was trying to
figure out her true identity. After getting a promise from Shiksaa that she wouldn't divulge
the information, Richter cut and pasted portions of an AIM conversation he was having at the
same time with Waggoner.
"I found out something about Shiksaa. Really interesting," Waggoner told Richter.
According to Waggoner, he had discovered that Shiksaa worked as a reporter for CNN.
"Got her social security number," Waggoner boasted.
"Want me to ask him any thing else, before I pass out laughing?" Richter asked
Shiksaa.
"Yes," she replied. "Ask him if he has a thing for me like you do," she said, inserting
a smiley-face emoticon to show she was only kidding.
"I'm trying to be serious about this," said Richter. Then he pasted another snippet of
the log of his simultaneous conversation with Waggoner.
"If I sue, they are going to come here. Even Linford. I can sue him even if he's in
Finland," Waggoner had told Richter, referring to Spamhaus's London-based director Steve
Linford, whom Waggoner appeared to believe was living in Finland.
Like a lot of the spammer intel Richter relayed to Shiksaa, the information about
Waggoner was nothing she hadn't heard before. Earlier that summer, Waggoner had contacted
her over AIM and threatened to sue her if she didn't remove his record from Rokso.
"I am researching you and all of the guys who run that right now, and I am close to
finding out the goods on everyone. Before I take you guys down hard, I am trying to be
polite," Waggoner had said.
"Don't threaten me, ass-wipe," replied Shiksaa.
"It's not a threat. I've already got investigators on your scene, finding your assets,
etc."
"You couldn't find your ass if you had a search warrant, flashlight, and a road map,"
said Shiksaa.
"You really think you're dealing with a moron here, eh?" he asked. "Lady, this can be
easy or hard."
"Go away, Billy Bob," was her response.
But Waggoner continued to press the issue.
"I am going to be driving your car, owning your house," he said. "Shiksaa, take my
record down and everything will be fine for you."
Although she disliked having to cut off the lines of communication with spammers,
Shiksaa had used AIM's "block" feature to prevent Waggoner from contacting her further.
Weeks went by, and he still didn't deliver on his threat to sue her.
Meanwhile, Richter had some legal problems of his own. Unknown to anti-spammers, in
August 2002 Richter had been charged by the Colorado attorney general with eight counts of
theft. The charges resulted after Richter bought large supplies of stolen cigarettes and
other hot items from a Denver undercover policeman between December 1999 and July 2001.
Detectives believed that Richter and a business associate were involved in a fencing
operation. Richter, who was still running the Colorado Sports Café at the time, claimed he
intended to use the cigarettes in his vending machines. He made several trips into one of
Denver's grittiest neighborhoods in his Lexus sport-utility vehicle to make the buys.
On January 2, 2003, Richter pled guilty in Adam County District Court to a single count
of conspiring to commit theft. He was sentenced to pay nearly $40,000 in restitution and was
placed on probation for two years. The court also ordered Richter to perform forty hours of
community service. The settlement went unpublicized at the time, but in an article that
appeared in Denver's
Westword
newspaper a year later, a detective with
the city's antifencing unit called Richter "one of the best crooks I know." Richter claimed
the episode was a clear case of entrapment.
Despite his legal problems, by the early spring of 2003, Richter appeared close to
clawing his way out of spammer purgatory. It had been nearly six months since Richter's
email ads landed in spam traps set up by Spamhaus and many other junk email opponents. Under
the guidelines for Rosko, Richter and OptInRealBig had almost been spam-free long enough to
qualify for removal from the blacklist.
"We have seen nothing implicating your outfit directly in many months," conceded spam
fighter Adam Brower in a late-February 2003 posting to Nanae in response to Richter's
request that a block of his company's Internet addresses be removed from the Spews
blacklist.
"You've done a great job of restructuring your entire business model," chimed Karen
Hoffmann, referring to Richter's efforts to send ads only to people who agreed to receive
them. "Hang in there, Scott. Keep up the good work," she added.
But Richter's public plea on Nanae failed to convince the mysterious operators of Spews
to take him off their blacklist. So Richter turned his attention to pressuring Shiksaa
privately to change or expunge his Spamhaus Rokso record. Richter was especially incensed
that his mother's contact information had been added to his Rokso listing.
Shiksaa explained that Spamhaus avoided listing relatives unless they were involved in
the spammer's business. Shiksaa pointed out that the name and address of Richter's mother
had appeared in a couple of Richter's corporate registrations, making her fair game. Junk
emailers often listed relatives in their corporate documents and domain registrations to
avoid detection when signing up for web hosting and other services.
Richter had all along denied that he was responsible for Waggoner getting her unlisted
phone number. But in early March 2003, Richter proved he was willing to use her personal
information as leverage. One evening he sent Shiksaa a teaser of an email. It arrived with
the subject line "Quick Question" and appeared to be seeking her advice as an Internet
sleuth:
Sorry to bother you. I know your busy but wanted to know if you had a link for
searching for addresses in California. Wanted to find out info about an Address. Think its
residential and in the Stanton area. Thanks Scott.
Half an hour later, a follow-up message arrived from Richter. This one simply said, "All
I have to go on is this," and then listed the street address of her condominium in Stanton,
California. Richter signed the message, "Thanks for assisting."
In the nearly four years that Shiksaa had been a spam fighter, she had always tried to
protect her address from all but the most trusted spam fighters. She had made arrangements
to list Adam Brower's contact information, not her own, in the registration record for her
Chickenboner.com
site. (She had originally used bogus contact information when she registered
the site in 2000 but was forced to list valid information after spammers complained to the
company hosting the site.) Similarly, in her Nanae postings, Shiksaa had never revealed so
much as the town she lived in, although she made no secret of the fact that she was in
southern California and even sometimes mentioned that she resided in Orange County.
The thought that Richter and other potentially vindictive spammers now had her home
address was chilling. Fending off kooks by email, IM, and even telephone was something she
had become quite adept at. But having them physically stalking her was not something she was
prepared to face. Southern California was home to several notorious junk emailers, including
some known for making threats of physical harm against anti-spammers. One of them, Rokso
denizen Saied "Sam Al" Alzalzalah, lived about an hour north in Beverly Hills. Sam Al had
repeatedly emailed violent threats to Spamhaus director Steve Linford. Once, Linford's
girlfriend had answered the phone when Sam Al called, and the spammer told her to get out of
the house because he was coming to shoot her. Linford shrugged off the threats, but he was a
guy living in England, thousands of miles away from Sam Al.
Adding to Shiksaa's worries was her father, who was hospitalized in late January after
fainting on a golf course. He was taken to a hospital emergency room, where doctors
discovered he had an infection that required immediate treatment. He was home again after
his hospital stay, but Shiksaa did not want him worrying about her safety. And yet she knew
she should warn him to be extra vigilant now that their address was potentially in the hands
of her enemies.
Shiksaa saw only one way out. On the morning of March 6, 2003, she contacted Richter
over AIM.
[
3
]
"Scotty, you up?" she asked.
"Yes," came his immediate response.
"My dad is still ill and he does not need to worry about me. I am composing a letter to
Steve [Linford] and resigning. Not just Spamhaus, but spam fighting in general," said
Shiksaa.
At that moment, she was ready to hang up her LART if it would protect her father from
harassment. But even as she typed the words to Richter, she knew he probably saw it as a
bluff. Could she really walk away so suddenly from Nanae, Spamhaus, and the last four years
of her life?
"If you believe in what you do, you should continue your fight," said Richter. But, he
added, if she truly intended to resign, she should first remove his mother's personal
information from Rokso.
"You can take that up with Steve," she replied. Then she continued, "It's ironic, since
I really wanted to help you and Bill [Waggoner]. So, you won."
Richter advised her to "only do what is right" in deciding whether to quit spam fighting
and whether to leave his family information posted on Rokso.
Shiksaa repeated that she was not responsible for his Rokso record.