Monday, September 15, 2008

Spammer Freed On First Amendment Ruling

The Virginia Supreme Court declared an anti-spam law unconstitutional, which led to one of the country's most notorious spammers to be released from prison.

Jeremy Jaynes, who became the first person convicted of a felony for sending spam in 2004 when he was sentenced to nine years in prison, sent thousands of e-mails to America Online users over a 24-hour period on at least three different occasions. He initially wanted the charges dismissed on the grounds "that the statute violated the dormant Commerce Clause, was unconstitutionally vague, and violated the First Amendment." The circuit court denied Jaynes' motion.

The matter which had previously been brought before the Supreme Court just six months ago was originally upheld by the court by a 4-3 margin. Jaynes's attorneys asked the court to reconsider, typically a long shot in appellate law, and the court not only reconsidered but changed its mind.

John Levine, president of the Coalition Against Unsolicited Commercial Email (CAUCE), said the court overturned the law because it sought to outlaw all forms of unsolicited e-mail, not just commercial junk mail. In contrast, he said, the federal CAN-SPAM Act limits the restriction to messages used to promote a business or other financial gain.

"Everyone agreed Jaynes was incredibly guilty, but the issue was the peculiarity of the Virginia law in that it could be read to apply to people who were sending junk e-mail but not quite as naughtily as Jaynes was doing it," Levine said. "In the United States, we have this ancient tradition where political and religious speech are very strongly protected, but the Virginia law applied equally to all speech, commercial or not."

A copy of the court's decision is available at this link here

The Virginia law in which Jeremy Jaynes was originally convicted "prohibits the anonymous transmission of all unsolicited bulk e-mails including those containing political, religious or other speech protected by the First Amendment," said Virginia Justice G. Steven Agee.

Specifically, spammers in Virginia who are convicted of altering e-mail headers and basic routing information along with sending 10,000 messages in a 24-hour window or 100,000 messages in 30-day time windows could face jail time and heavy fines.

For his part, Virginia Attorney General Bob McDonnell said he intends to appeal the case to the U.S. Supreme Court.

"Today, the Supreme Court of Virginia has erroneously ruled that one has a right to deceptively enter somebody else's private property for purposes of distributing his unsolicited fraudulent emails. I respectfully but fervently disagree," McDonnell said in a written statement. "We will take this issue directly to the Supreme Court of the United States. The right of citizens to be free from unwanted fraudulent emails is one that I believe must be made secure."

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