The Ninth U.S. Circuit Court of Appeals yesterday upheld the obscenity convictions of two men for sending unsolicited e-mail advertisements for an adult website.
-- From "Ninth Circuit Upholds Obscenity Convictions Based on Spam" by a Metropolitan News-Enterprise Staff Writer 10/29/09
Jeffrey Kilbride and James Schaffer began operating their bulk e-mail advertising business in 2003. Although it was initially operated as an American corporation, Kilbride and Schaffer later shifted their operation overseas, running it through a Mauritian company utilizing Internet servers in the Netherlands.
The e-mails included sexually explicit images and contained fictitious information as to the source and routing information of the message’s sender. Kilbride and Schaffer also provided a false contact person and phone number in the registration of the domain names they used.
If a recipient of one of their e-mails signed on to the advertised website and paid a fee, Kilbride and Schaffer earned a commission from the entity promoted.
In 2005, the men were indicted for fraud and conspiracy to commit fraud in connection with electronic mail, interstate transportation of obscene materials and conspiracy to commit money laundering
They were convicted on all counts following a three-week jury trial before U.S. District Judge David G. Campbell of the District of Arizona. Kilbride was sentenced to 78 months imprisonment and Schaffer was sentenced to 63 months.
The case is United States v. Kilbride, 07-10528.
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-- From "A 'national standard' for obscenity?" by Charlie Butts, OneNewsNow, 10/29/2009
"The two defendants were convicted under the Can-Spam Act, which prohibits individuals from spamming you in your e-mail account," reports [Pat Trueman, special counsel for the Alliance Defense Fund (ADF)]. "But these two individuals were spamming people with hardcore pornography, so there was the additional charge of obscenity."
The court upheld the conviction, but also ruled that a national standard -- rather than community standard -- must be used in determining whether something is obscene. Trueman worries that with such a ruling, defense attorneys will now tell jury members they cannot determine whether something is obscene unless that has already been determined.
According to the ADF attorney, the way these cases have previously been handled has been on the basis of local community standards. But Trueman suggests that if the Ninth Circuit's ruling stands, it could make convictions far more difficult than they currently are. He is hopeful the decision will be appealed.
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