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The charges against the "Buffalo spammer," accused of flooding the Internet with e-mail ads, rest on an untested legal foundation, defense lawyer Joseph J. Terranova said Monday.

Buffalo resident Howard Carmack was charged last week with assuming different identities to obtain e-mail accounts from Internet service EarthLink. The company said Carmack was able to send about 825 million "spam" e-mails by moving from account to account, masking his real identity.

The University District man faces felony forgery charges and two counts of identity theft, a misdemeanor.

The forgery charges attempt to parlay an old statute into the novel world of e-mail, Terranova said, while the identity theft law, passed last year, lacks a track record in court.

"At this point, the theories of the prosecution appear to center on some old law . . . and identity theft, which is untested," he said. Fictitious identities aren't necessarily stolen, he added.

Carmack, 36, appeared before Buffalo City Judge Andrew C. LoTempio, who postponed the hearing until June 16, pending action by a state grand jury. Carmack is free on $20,000 bail, LoTempio said.

Assistant State Attorney General Paul McCarthy said a court will decide the validity of the charges, unless a settlement is reached.


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