The Virginia Supreme Court has upheld the nation's first felony spam conviction. The ruling Friday decided Virginia's antispamming law does not infringe on the First Amendment right to free speech.
"This is a historic victory in the fight against online crime," Virginia Attorney General Bob McDonnell said. "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 November 2004, a jury in Loudoun County Circuit Court convicted Jeremy Jaynes on three counts of violating Virginia's Anti-Spam Act, which became law in 2003. Almost all 50 states now have antispamming laws, but the Jaynes case was the first felony conviction. The case received international attention as it worked its way up to the state's high court.
After convicting Jaynes, the same jury sentenced him to nine years in jail. The defendant appealed and last September the Virginia Court of Appeals upheld the conviction. The Virginia Supreme Court upheld the lower court's ruling.
Jaynes was regarded as the eighth-worst spammer in the world on The Spamhaus Project's Registry of Known Spammer Organizations at the time of his arrest. Prosecutors from the Attorney General's Computer Crime Section told the jury that Jaynes, utilizing AOL's Virginia-based computer network, peddled his products to victims around the world. They said the global fraud earned millions of dollars, which Jaynes used to purchase a mansion and a number of homes in Raleigh, N.C.
Encouraging Spam-Law Enforcement
Alex Southwell, a former federal prosecutor and an attorney with Gibson Dunn & Crutcher in Manhattan, said the Jaynes case didn't directly deal with First Amendment issues. Instead, it was a case of illegal commercial spam.
"This decision makes clear that vigorous enforcement of spam laws -- in particular, Virginia spam laws -- will be allowed," Southwell said. "It's a further encouragement and support to law enforcement to go after spammers. These laws are deterrents because the jail sentences can be significant."
The Jaynes case is also notable, Southwell said, because of the large volume of Internet traffic that travels through Virginia. Internet service providers can be strained by spam's impact on e-commerce and e-mail.
Chuck Curran, AOL's chief counsel for policy and regulatory, applauded the ruling. "Tough antispam laws like Virginia's provide a critical deterrent for spammers who try to fill e-mail boxes with unwanted and fraudulent solicitations," Curran said.
Virginia's law prohibits sending unsolicited bulk e-mail by fraudulent means, such as changing the header or routing information to prevent recipients from contacting or determining the identity of the sender.
Free Speech Tension
The decision against Jaynes was not unanimous. The Virginia Supreme Court ruled 4-3 against Jaynes. Justice Elizabeth Lacy wrote in a dissent that the law is "unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mail, including those containing political, religious or other speech protected by the First Amendment to the United States Constitution."
The split decision is evidence of the tension in the digital realm on free speech issues, according to Southwell. While it's vital to respect and even rule with deferential treatment to the First Amendment, he said, the Virginia Supreme Court drew the line in this case to prosecute illegal activity that attempted to use free speech as a shield.
"I think you will see more and more tension between First Amendment issues and enforcement issues as the digital realm continues to become a greater part of our everyday lives," Southwell said. "This is one decision that will help steer future courts."