Legal News

Virginia is for Spammers? High Court Shoots Down Anti-Spam Law

By Dan Slater

The big court news of the day comes to us from Virginia, where Jeremy Jaynes — who in 2004 became the first person in the country to be convicted of a felony for sending spam — has been vindicated by the state’s high court.

Here’s the money passage from the opinion, which was penned by Justice G. Steven Agee, now of the Fourth Circuit:

Many other states have regulated unsolicited bulk e-mail but, unlike Virginia, have restricted such regulation to commercial e-mails . . . There is nothing in the record or arguments of the parties, however, suggesting that unsolicited non-commercial bulk e-mails were the target of this legislation, caused increased costs to the Internet service providers, or were otherwise a focus of the problem sought to be addressed . . . Therefore, viewed under the strict scrutiny standard [Virginia’s anti-spam law] is not narrowly tailored to protect the compelling interests advanced by the Commonwealth.

The court held that the law “is unconstitutionally overbroad on its face 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 U.S. Constitution.”

According to this AP report, Jaynes’ attorney, Thomas Wolf, has said sending commercial spam would still be illegal under the federal CAN-SPAM Act even if Virginia’s law is invalidated. However, he said the federal law would not apply to Jaynes because it was adopted after he sent the e-mails that were the basis for the state charges.

If you’re curious about Jayne’s spamming transgressions, here’s what happened, according to the factual record laid out in the opinion. From his home in Raleigh, N.C., Jaynes used several computers, routers and servers to send over 10,000 e-mails within a 24 hour period to AOL subscribers. While executing a search warrant of his home, police found a cache of compact discs containing over 176 million full e-mail addresses and 1.3 billion e-mail user names. The search also led to the confiscation of discs which contained AOL e-mail address information and other personal and private account information for millions of AOL subscribers — all of which had been stolen from AOL by a former employee and was in Jaynes’s possession.

Full post as published by Law Blog - WSJ.com on September 12, 2008 (boomark / email).