The engineer, who pleaded guilty to appropriating email addresses and then selling them on to spammers, had his plea refused by the judge.
Judge Alvin Hellerstein, although admitting to a dislike of "spamsters" (sic), could not be convinced Jason Samthers had committed a crime under the CAN-SPAM Act. The judge said it was not clear the defendant had deceived anyone - a key requirement of the new law.
Smathers was caught in June this year and arrested along with accomplice Sean Dunaway, 21. Both Smathers and Dunaway face up to five years imprisonment and a fine of at least $250,000 if found guilty.
Smathers obtained the email addresses by using another employee's password to gain access to AOL's extensive databases. The list he acquired, later sold on to spammers for more than $100,000, contained email addresses, telephone numbers, zip codes and the type of credit card used by each member. The list did not contain actual credit card details.
According to prosecutors the list is still doing the rounds amongst the spamming fraternity.