• by Wendy Davis  @wendyndavis, February 3, 2010

In a ruling interpreting the meaning of "mass marketing," a federal appellate court said this week that people who defraud others by posting ads on the Web are subject to longer sentences than con artists who merely respond to online ads.

The ruling grew out of a scam by drug addict Melissa Christiansen, who posed on MySpace and Surromomsonline.com as a pregnant woman looking for someone to adopt her unborn child. She both posted false information about herself on those sites and answered ads from would-be parents seeking to adopt. Between 2003 and 2006 she conned at least three people out of money, with one victim losing around $20,000.

Christiansen eventually was caught and pleaded guilty to crimes that carried a recommended sentence ranging from no jail time to six months. But the pre-sentencing report prepared for her case recommended a higher sentencing range -- four to 13 months -- because she had used "mass marketing" to further a fraud.

The trial judge agreed that the higher range was appropriate and sentenced her to four months in prison. She appealed, arguing that she didn't use "mass marketing" -- defined by the statute as using the Web in order to fraudulently "induce a large number of persons to ... purchase goods or services."

On Tuesday, the 7th Circuit Court of Appeals ruled against her, stating that posting a Web ad that is available for public viewing constitutes mass marketing. "If she was interested in only inducing a small number of people, she likely would have only responded to the advertisements that already existed," the appeals court wrote.

Santa Clara University professor Eric Goldman notes that a trial judge in federal district court in Michigan recently came to the same conclusion in a different case. In that situation, a judge found that two participants in a wire fraud scheme -- Hassan Zein and Nathan Madison -- had engaged in mass marketing because they advertised on Craigslist for someone to act as a straw buyer.

The defendants unsuccessfully argued that a Craigslist ad should not be considered mass marketing because it was only placed on one site, in one city and in one category.