Plea Rejected in AOL Membership List Theft

The Washington Post reports that the Judge in the case against the AOL employee who stole the AOL Membership list and sold it to spammers has rejected a guilty plea on the grounds that a crime may not have been committed.
While employed at AOL the software engineer stole 92 million email addresses and sold them to spammers for $100,000. However he is charged under the Federal CAN-SPAM act which the Judge says requires proof of deception. Normally this deception is in the form of forged mail headers and return addresses.
I would suspect that this cretin would be seen as a co-conspirator with the spammer and thus the spammers deception would also be his own. So at a re-hearing in January perhaps they can push this thing through.
Still it seems to me that this is illustrative of what happens when Congress creates law for the problem of the day instead of allowing currently law to do the job. I tend to think that if this guy was charged with theft of trade secrets there wouldn’t be this grey area. Of course from my cyberlaw class, they would have had to prove that the membership list was really a trade secret and was adequately protected by AOL. At least then they wouldn’t have a clearly established area of law instead of creating a potential test case of the CAN SPAM statute and potentially having problems with activist Judges.