There are provisions in the CAN-SPAM Act of 2003 "allowing for a spammer's profits to be considered in sentencing when financial damages caused by his crimes could not reasonably be calculated," McNamara writes. But until U.S. District Judge Lewis Babcock applied those provisions last month in sentencing convicted spammer Min Kim, no other court had done so. Writes McNamara:

If not for the use of Kim's profits -- an admitted $250,000 -- as a sentencing determinant, the 24-year-old spammer would have faced a prison stint of 24 to 30 months instead of 30 to 37 months. Citing Kim's first-time offender status, Babcock sentenced him to the minimum 30 months called for in the more punitive range. While that may appear generous, it likely represented a 20 percent stiffer penalty over what Kim would have received absent the profit-based calculation; and, it could have opened the door for as much as 13 months additional time had he been a recidivist.

McNamara writes that "more big-time spammers" could face such stiffer sentences if Babcock's decision "becomes widely applied."