Court overturns Virginia spam law, sides with free speech

The Virginia Supreme Court has overturned a state antispam law and the 2004 conviction of long-time spammer Jeremy Jaynes, saying the law is an overly broad prohibition on anonymous free speech.

The Supreme Court, in a decision released Friday, said the 2003 Virginia spam law didn't distinguish between commercial e-mails and those with political messages, and thus was an overly broad prohibition on free speech protected by the First Amendment of the U.S. Constitution.

Jaynes was convicted in 2004 and sentenced to nine years in prison for sending millions of unsolicited e-mail messages a day from his home in North Carolina. He was the first person to be convicted of sending illegal spam in the U.S.

The Virginia spam law "prohibits the anonymous transmission of all unsolicited bulk e-mails including those containing political, religious or other speech protected by the First Amendment," wrote Virginia Justice G. Steven Agee in the opinion.

The Virginia law allowed jail sentences for spammers if they altered e-mail headers or other routing information and attempted to send either 10,000 messages within a 24-hour period or 100,000 in a 30-day period. The sender could also be prosecuted if a specific transmission generated more than US$1,000 in revenue, or if total transmissions generated $50,000.

Jaynes' prison sentence was longer than those of other prolific spammers convicted in recent years. In July, "Spam King" Robert Soloway was sentenced to 47 months in prison after pleading guilty to fraud, spamming and tax evasion.

Virginia prosecutors argued the spam law was a trespass law focused on the e-mail servers of companies such as AOL and not a free speech law, but the Supreme Court rejected that argument. The law's prohibition against changing e-mail headers took away the ability of e-mail senders to be anonymous, the court said.

The court also drew a distinction between false and fraudulent header information, when prosecutors used those descriptions interchangeably. False header information doesn't necessarily mean the information is fraudulent, and false information is the only way to protect an e-mail sender's right to be anonymous, the court said.

"Because e-mail transmission protocol requires entry of an IP [Internet Protocol] address and domain name for the sender, the only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name," Agee wrote.

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Ray Everett-Church, director of privacy and industry relations at e-mail marketing vendor Responsys and a critic of spammers, questioned the Virginia Supreme Court's decision.

"I find their application of anonymous speech protections to be overly simplistic," Everett-Church said. "Jaynes was engaged in commercial speech, not political or religious speech, and as such the constitutionality of such restrictions are supposed to be judged at a different standard."

The court suggested the Virginia law would outlaw the e-mail publication of the Federalist Papers, a series of articles advocating the ratification of the U.S. Constitution in 1787-88, were they to be first published now. Everett-Church dismissed the comparison of spam to those important historical documents.

"I get the sense that the court is suffering from a poor understanding of how anonymous speech works in the Internet age," Everett-Church said. "I find the court's attempt to compare The Federalist Papers to the likes of penis enlargement e-mails not only wrong-headed but ultimately offensive to the reasons why we have a First Amendment."

While the Supreme Court's ruling overturns Jaynes' conviction, it should have little impact nationwide, because the U.S. Congress passed its own spam law in late 2003, said Jerry Cerasale, senior vice president of government affairs for the Direct Marketing Association, a trade group representing direct marketers.

In addition, DMA members have to follow the trade group's own rules on sending commercial e-mail, Cerasale said. "A legitimate marketing entity is not going to lie in the header because they want to sell you something," he said.

The federal Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act allows Internet service providers to sue spammers and state attorneys general to sue on behalf of users.

CAN-SPAM includes a criminal penalty of up to a year in jail for sending commercial e-mail with false or misleading header information, plus criminal penalties, ranging up to five years in prison, for some common spamming practices, including hacking into someone else's computer to send spam, registering five or more e-mail accounts using false information and using those accounts to send bulk spam.

The law allows multimillion-dollar fines for some spamming activities.