A federal judge's recent decision may mean more jail time for spammers who profit greatly from their crimes. The case tackled the matter of determining the actual financial harm done to an ISP by a spammer. The CAN-SPAM act allows a spammer's profits to be considered in sentencing when that financial harm can not be determined. A recent case in Denver, the United States vs Min Kim, involved such a situation. The spammer, Min Kim, admitted to making a quarter million dollars in profit, and as a result, he was sentenced to three years in prison, rather than the 2 years he could have gotten.

"We're excited by the court's ruling," says Aaron Kornblum, senior attorney with Microsoft's Internet Safety Enforcement Team. "In cases where there's a large amount of profit being realized, there is now the potential for a significant increase in sentences."

Over 7 million email addresses were found on Kim's computer, and he admitted to purchasing an additional 200 million several years ago. He used proxy servers, false subject lines and Dark Mailer to avoid the spam defenses of ISP's. Kim's lawyer, Virginia Grady, defended Kim by saying he couldn't put an exact number on the damage he caused and claimed all ISP's have to spend money on fighting spam whether they like it or not.

"What evidence is there that this spam that was sent by this defendant caused loss?" Grady asked the judge, "And to answer that question we have to know whether the money spent for the new servers and the filters, and the like ... would have been spent regardless of the spam encountered here. And I think the answer is pretty plainly, yes, it would have; and the reason for that appears obvious. Companies that sponsor e-mail will invest in building a better spam trap. And that I think amounts to the cost of doing business in this industry."

The judge didn't buy it.

"The combination of the stipulated facts and the evidence that I received reflects that Mr. Kim is sophisticated with regard to the economic gain to himself through spamming," he said. "Sophisticated to the extent that when he became blacklisted, he went to a proxy server, DarkMailer, and rendered his messages anonymous. Why? So as to beat the ISPs' protective measures."

Unfortunately for Kim, he kept a detailed record of his crimes, providing prosecutor with enough information to prove he did indeed cause financial harm. He will begin serving his sentence in January.