Posted on March 31, 2009 by Adam Snukal

Virginia Anti-Spam Law Stays Unconstitutional

In September 2008, the Virginia Supreme Court unanimously ruled that Virginia’s then-enacted anti-spam laws were per se unconstitutional on the grounds that they violated the First Amendment right of freedom of speech. At the time, Virginia’s anti-spam laws prohibited the sending of unwanted, unsolicited e-mails, both commercial and non-commercial.

The Virginia Supreme Court argued that since the law failed to make any distinction between the different types of emails a user could be sending, it would have prevented political, religious and other messages covered under the First Amendment, as well as general commercial solicitations. The court also noted that the statute failed to meet strict scrutiny, pointing out that similar anti-spam statutes had been enacted by several states, as well as by the federal government (which passed the CAN-SPAM Act in 2004), but all those statutes were narrowly tailored to target commercial spamming. Justice G. Steven Agee, who wrote the unanimous opinion for the court and cited a 1995 U.S. Supreme Court case, stated “The right to engage in anonymous speech, particularly anonymous political or religious speech, is ‘an aspect of the freedom of speech protected by the First Amendment.’” Along with the State Supreme Court striking down this law, its decision reversed the conviction of Jeremy Jaynes, the first person in the United States convicted of a felony for sending unsolicited bulk-emails. Jaynes was once considered one of the world’s most prolific spammers, sending mass emails anonymously by using false Internet addresses.

Immediately following this ruling in 2008, Virginia Attorney General Robert F. McDonnell promptly announced that he would appeal the case to the United States Supreme Court. Earlier today, the U.S. Supreme Court elected not to consider reinstating Virginia’s anti-spam law.

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Posted on October 16, 2008 by Douglas J. Wood

Va. Spam Law Ruled Unconstitutional; Spammer Conviction Overturned

The criminal conviction of Jeremy Jaynes—the first-ever such conviction under Virginia’s strict anti-spam law—has been vacated in a ruling in which Virginia’s highest court concluded that the law in question is unconstitutionally overbroad. Had Jaynes’ conviction stood, he could have served as much as nine years in prison.

Jaynes was convicted under the Virginia Computer Crimes Act of illegal spam for sending tens of thousands of unsolicited commercial emails to subscribers of America Online, Inc. (AOL). Jaynes allegedly falsified the header information and sender domain names before transmitting the emails in violation of the law. When investigators searched his home, they found electronic records containing the emails of some 1.3 billion users.

A resident of Raleigh, N.C., Jaynes was tried in Loudoun County, Va., where AOL had its headquarters at the time that the alleged spam was sent. He was convicted by a jury, and his conviction was upheld by a Virginia Court of Appeals.

But in September, the Virginia Supreme Court vacated Jaynes’ conviction, concluding that the statute was unconstitutionally overbroad 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.”

The Commonwealth of Virginia had argued that its statute only prohibits the transmission of unsolicited bulk email that is sent using falsified headers and domain names. The Commonwealth argued that there is no First Amendment right to use false identification to gain access to private servers.

But the Supreme Court rejected this argument. Private companies may have recourse for the trespass of their property, but the availability of this remedy is a separate issue from whether the government’s actions impact First Amendment rights, the court concluded.

The court then noted that Virginia’s law impinges on the Constitutional right to anonymous free speech. Because e-mail transmission protocol requires entry of an IP address and domain name, entering false information is the only way a sender can send an anonymous email, the court reasoned.

“The right to engage in anonymous speech, particularly anonymous political or religious speech, is ‘an aspect of the freedom of speech protected by the First Amendment,’” the court stated. The court further determined that statutes that burden “core political speech” must be narrowly tailored to further a compelling state interest.

Virginia’s statute—which applies to all unsolicited email with falsified headers and domain names—is not limited to “commercial or fraudulent transmission of email,” the court noted, “nor is it restricted to transmission of illegal or otherwise unprotected speech  such as pornography or defamation speech.”

Therefore, the statute is not “narrowly tailored” to protect the compelling interests of the Commonwealth, the court concluded.

In addition to arguing that Virginia’s law was unconstitutional, Jaynes claimed that the Commonwealth did not have jurisdiction to prosecute him. The Virginia Supreme Court, however, rejected this argument. But by sending email to AOL users, Jaynes was aware that he would be accessing AOL servers, the court noted.

Why This Matters:  The ruling generally favors email marketers because it recognizes that email is protected First Amendment speech, and that states seeking to regulate email transmission must meet the same tests for Constitutionality as with other forms of speech.  On the other hand, read broadly, this decision has serious ramifications with regard to the Constitutionality of the CAN-SPAM Act, the federal statute that also prohibits false header and domain name mailings.
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