Upholding the conviction of one of the world’s most
notorious spammers, a tight
4-3 ruling in Virginia’s Supreme Court determined that spam is not a form
of protected free speech.
Jeremy Jaynes, a resident of Raleigh, N.C., had previously
been listed by spam-tracking firm Spamhaus as the “8th most prolific
spammer in the world,” and was arrested
in December 2003 on charges of violating a new Virginia anti-spam law,
enacted the previous June.
At the time, prosecutors said that in a period of just one
month, Jaynes and a partner sent over 100,000 e-mails to AOL users that were in
turn reported as spam, with untold more going to other ISPs. Using a T1 line, Jaynes
used fake names and return addresses to peddle everything from bad stocks
to work-at-home schemes. One such scheme saw 10,000 $39.95 orders for a “FedEx
refund processor,” which supposedly paid $75 an hour.
Jaynes’ 2004 conviction – the first of its kind in the
nation – earned him nine years in prison, with a jury finding him guilty of
three counts of using deceptive routing information to send unsolicited bulk commercial
e-mail. His out-of-state location did not save him: Virginia’s
antispam statute is enforced against any mail passing through the state,
and Jayne’s main targets (AOL and its upstream provider, MCI) both had offices in Virginia.
In his appeal, Jaynes argued that Virginia’s anti-spam statute
was a violation of the First Amendment and the interstate commerce clauses of
the U.S. Constitution, claims which were rejected by both the Virginia Court of
Appeals and the Virginia Supreme Court.
The closeness of the decision represents a fracture in the
court’s opinion on deeming Jayne’s activities as unprotected free speech: “I
would find [the antispam statute] unconstitutionally overbroad on its base,”
wrote dissenting Justice Elizabeth Lacy, “because it prohibits the anonymous
transmission of all unsolicited bulk e-mails including those containing
political, religious or other speech protected by the First Amendment to the
United States Constitution.”
Virginia Attorney General called the ruling a “historic
victory in the fight against online crime,” noting that “spam not only clogs
e-mail inboxes and destroys productivity; it also defrauds citizens and
threatens the online revolution that is so critical to Virginia's economic
prosperity.”
In a written statement, Jayne’s attorney, Thomas Wolf,
expressed disappointment with the courts’ ruling: “Unfortunately, the state
that gave birth to the First Amendment has, with this ruling, diminished that
freedom for all of us … as three justices pointed out in dissent, the
majority's decision will have far reaching consequences.”
“The statute criminalizes sending bulk anonymous e-mail,
even for the purpose of petitioning the government or promoting religion,” said
Wolf.
