Spam Kings (30 page)

Brad Bournival's ringing cell phone woke him on March 10. It was eight in the morning;
he'd hit the hay at around five a.m., his usual bedtime. Bournival's half-brother, Erik
Francoeur, was on the line. He told Bournival that someone had just been at the apartment on
Montgomery Street and was trying to serve Bournival with a lawsuit. The man was waving a
photo taken from Bournival's Yahoo! member profile, which showed him, unshaven, wearing a
cowboy hat and sunglasses. The man wanted to know if anyone had seen Bournival.
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"What did you tell him?" asked a groggy Bournival.

"The usual drill," said Francoeur. Bournival had instructed his family members to play
dumb with anyone who came looking for him.

Bournival thanked Francoeur and hung up. He assumed the visitor was just another schmuck
trying to get settlement money out of him. Bournival went back to sleep.

Bournival awoke again early that evening. As he was checking his email and reading the
headlines at
Yahoo! News
, Bournival spotted an article about spam
lawsuits filed that day by AOL, Earthlink, Yahoo!, and Microsoft. Bournival leaned
in.

According to the story, the lawsuits were the first by ISPs under the new CAN-SPAM law.
AOL's lawsuit targeted Davis W. Hawke, Braden Bournival, and fifty unidentified "John Does."
The article quoted AOL's general counsel, Randall Boe.

"If you're a spammer, this is not a great day for you," said Boe. "Ultimately, we're
going to locate you and sue you."

Bournival stood up beside his desk, nearly overwhelmed with the fear that The
Authorities were about to pound on his oversized front door. Then he forced himself to
relax. He gazed back at the computer screen. Seeing his name among the top stories on Yahoo!
was unreal. He had known for months—ever since Dr. Fatburn got sued—that this day might
come. It was the risk he took every time he clicked the Send button. Yet he didn't think AOL
would choose him, not with so many bigger, more egregious spammers in the business.

But according to AOL, he and Hawke had generated over 100,000 complaints from members
since January 1, 2004. The company had sicced its superstar outside counsel on him—Jon
Praed, the same lawyer who sued Moore and Ralsky. AOL claimed Hawke, Bournival, and their
affiliates falsified headers so that messages appeared to come from Hotmail or other ISPs.
It said they had sent spam using dictionary attacks and address harvesting, which were
prohibited under CAN-SPAM.

The law gave AOL the authority to seek damages of $100 per violation. What was that,
twelve million dollars? Bournival looked around his high-ceilinged study, in the home that
looked like a fraternity house minus the frat boys. How could he possibly survive this
lawsuit?

Bournival reached for his cell phone. He was about to call Hawke, but he stopped.
Instead, he dialed Dr. Fatburn's number. He needed the name of Fatburn's lawyer.

That evening, Mauricio Ruiz was over at Hawke's house. He was surfing the Web on one
computer while Hawke used another. Ruiz spotted the article first.
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"Yo, Johnny, you are not fucking going to believe this!"

"Yo yo, what up," Hawke replied. He pushed off from his desk and rolled his chair across
the floor toward Ruiz.

"Look," said Ruiz, jabbing his finger at the computer monitor.

The two of them stared at the screen, nearly cheek to cheek. Hawke impatiently scrolled
through the article, waiting for the punch line. He was disappointed that the story buried
his name in the tenth paragraph. But he began to laugh, a big, natural laugh.

"What is so funny?" Ruiz asked.

"How are they going to sue me?" Hawke said, his eyes flashing. "I have no
assets."

Then Hawke pointed to the bottom of the screen. The last paragraph of the article
stated, "Hawke did not return a telephone call from The Associated Press to his home in
Massachusetts."

"Hell, they don't even know where I fucking live!" he shouted.

Later that evening, when Bournival phoned him, Hawke was still laughing about the
lawsuit.
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"Congratulations," Hawke told him.

Bournival wasn't able to make light of the matter. He told Hawke that he was going to
call a lawyer in the morning.

"Why? What can he possibly do for you?"

"I don't know. I'll find out my options," said Bournival.

Hawke told Bournival to lighten up. He reminded Bournival that it was just a lawsuit,
not a criminal case. It was nothing more than a huge corporation complaining that someone
had unfairly taken its money. The police were not involved. It wasn't about doing jail
time.

But after he hung up, Hawke gave some thought to hiring his own lawyer. He knew just the
guy to battle AOL. The previous December, spammers cheered when an attorney from Albo
& Oblon convinced a federal court in Virginia to throw out an AOL lawsuit. AOL lost
on a technicality; the judge said the court didn't have jurisdiction over the case, which
involved alleged spammers in Florida. And AOL later re-filed the lawsuit in a Florida court.
But the attorney from Albo & Oblon vowed he'd get that case dismissed as well. That
was the kind of chutzpa Hawke wanted in a lawyer.

There was no doubt that AOL had the advantage. Not even the best defense lawyer could
dispute the evidence: Hawke, Bournival, and their affiliates had obviously sent the spams.
The only thing open to debate was the damage they caused to AOL. As Hawke saw it, the case
would probably end up the way spammer lawsuits always did. There'd be a settlement between
his lawyer and AOL's lawyers, whose goal was to take all his money, to "disgorge" his
illegal profits, as they called it. AOL would also get a court injunction, saying he could
never spam AOL again. AOL was just trying to make an example of him, to show the world that
spamming AOL did not pay.

No way was Hawke going to give AOL that satisfaction. They could get Amazing Internet's
bank records from Bournival to calculate how much Hawke had made. But they'd have to
bulldoze five states to put their hands on any of the money. He'd say he lost it all
gambling at Foxwoods. He'd plead poverty, and they couldn't prove otherwise.

In a way, being sued by AOL was liberating to Hawke. Now that the deterrent of a lawsuit
was gone, he could spam with impunity. What was AOL going to do, sue him again? Hawke went
to his computer and composed a brief ad:

In the "from" line of the spam, he listed his name as "Doctor Bulker." He also provided
a Yahoo! email address and one of the toll-free numbers he had set up for the Phoenix
Company. Then Hawke blasted the spam out to a list of 80,000 addresses he had harvested from
spam sites and other "bulk-friendly" sources.

The next day, Hawke kicked his spamming into high gear. He registered a couple of new
domains, including ephedrazone.com, listing [email protected] as his email
address. In hopes of recruiting new RaveX affiliates, he sprayed the Internet with want-ad
spams:

Hawke's spamming frenzy was short-lived, however. As word of the AOL lawsuit spread—the
story made the front page of the
New York Times
— Spamhaus posted an
entry about Hawke on the Rokso list, and his various Internet addresses were added to the
Spamhaus Block List. Suddenly, many would-be customers couldn't reach his web sites. To head
off further problems, Hawke and his crew emptied the 150 Main Street office in the middle of
the night. But Hawke's troubles got worse a few days later when he received a call from his
merchant-account contact. The deal was off. Hawke tried to negotiate, but the man just hung
up and told Hawke never to call him again. Stuck without the ability to process credit card
orders, Hawke scrambled to find a new merchant account. In the meantime, the Phoenix Company
was relegated to accepting orders by check.

After retaining Dr. Fatburn's lawyer from Whiteford, Preston & Taylor, Bournival
decided not to play any games with AOL. He just wanted the legal process to run its course
as quickly as possible. AOL's attorneys served Bournival's lawyer on March 17, and soon
thereafter Bournival began a series of long telephone conversations with Jennifer Archie,
the Latham & Watkins lawyer who teamed with Praed on AOL's spam litigations. On his
attorney's advice, Bournival cooperated fully. He didn't volunteer information, but he told
Archie pretty much anything she wanted to know about Amazing Internet Products. To his
surprise, instead of treating him like a criminal, she acted as if the lawsuit was just a
business deal. It gave him hope that he might emerge from it all with his future intact.
Maybe, if he played his hand right, he'd get to keep the Hummer and a couple hundred
thousand dollars. He'd use the money to launch a new Internet business that was legal, or
even become an anti-spam consultant.
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Archie warned Bournival that he'd be in limbo until the lawsuit was wrapped up. That
could take six months, she said, or even longer if Hawke continued to be difficult.

Over ten days had passed since AOL filed the lawsuit, but the private investigator AOL
hired to serve Hawke still hadn't managed to track him down. The PI knew Hawke maintained a
post office box in Pawtucket, and AOL had received information that he was living in nearby
North Smithfield. But without an address to go on, the PI was stuck. He hung around
vegetarian restaurants in Pawtucket and Providence with a photo he had printed out from a
1999 newspaper article about Hawke. He staked out the former Phoenix Company office on Main
Street. He parked on the street outside Hawke's old Crescent Road apartment, hoping to spot
his black Crown Vic. He waited at the tennis courts in Slater Park on the chance that Hawke
would show up for a chilly game of spring tennis.
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Then AOL got a tip that Hawke was renting a single-family home at an address on North
Smithfield's Black Plain Road. The PI checked the deed for the property and contacted the
owner. She confirmed that the man in the photo was her tenant but had signed the lease using
a different name. The PI staked out the tidy colonial for two days, hoping to catch a
glimpse of Hawke through the bay window. Upon returning the third day, March 23, he saw the
Crown Vic in the driveway. He banged on the breezeway door and called Hawke's name but got
no answer. He tried the front entrance, but still no response.

The PI pulled out his cell phone and dialed the number he had for Hawke. He heard a
phone inside the house spring to life. After the phone rang three times, the PI hung up, and
the ringing stopped. At that point, the PI realized it was going to be a "nail and mail"
case. The PI tacked the envelope to the front door and departed.

Inside, Hawke held his breath until he saw the car drive off. Then he retrieved the
documents from the front door and locked it again. He was furious that AOL had been able to
serve him so quickly. Now the clock was ticking. By law, if he didn't respond within twenty
days, AOL could ask the court for a default judgment.

Obviously, someone had squealed. Only Hawke's closest associates knew his home address,
so that eliminated Dr. Fatburn, despite the man's obvious wish to take him down. Hawke's
former partner Bournival potentially had the motivation. To keep in AOL's good graces, he
was probably singing like a canary about his side of the business. But Hawke didn't think
Bournival would give up Hawke's address. Brad's innocent mistakes were the cause of their
legal problems, but the guy was not a total snitch. The other possibility was Margie, the
girl he'd brought up from Columbia whose services he'd stopped using several weeks before
out of boredom. (He was still trying to line up a new girl from South America.) But Margie
didn't have the language skills to report him. Besides, she was a best friend of Liliana,
and no way would they want to jeopardize Mauricio.

Then it dawned on Hawke—his mother knew his address, although she'd never been to the
house. The lawsuit probably brought back for her the shame she had felt in 1999, when her
hometown paper, the
Boston Globe
, reported that Hawke was running a
neo-Nazi group. After all, she was the one who had told the
Washington
Post
that Hawke was a "chicken," and that's why he didn't show up at the rally
in Washington, D.C. She was the one who, that same year, sobbed into the phone to a reporter
from
Rolling Stone
that she wished someone would
kill
him, her only son. That's the kind of mother she was, thought
Hawke. If AOL's lawyers leaned on her, she'd willingly give him up.

Hawke picked up his cell phone from the table. On the screen was a message that he had
missed the call from AOL's private investigator. According to the caller ID, it was from
area code 617 in Massachusetts. But the prefix—the three numbers after the area code—was new
to him.

"Hello," Hawke said to the empty house. He jotted the number down on the envelope of
legal papers. Later, he would use it to turn the tables and begin investigating the PI. But
first, he'd use the number's area code and prefix combination to create a new mailing list
for cell phone spam.
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