Court Upholds Spammer’s Conviction

The three-count conviction of spammer Jeremy Jaynes has been upheld by a 4-3 vote of the Virginia Supreme Court. Jaynes was convicted for forging the header information on thousands of unsolicited commercial electronic messages that he sent out from his Raleigh, N.C. home.

The Virginia statute criminalizes forging headers and makes it a felony to send out more than 10,000 unsolicited bulk emails in a 24-hour period. He was sentenced to three years for each of the three counts, with the sentences to be served consecutively. He is the first person convicted of a felony for spamming.

Jaynes challenged the statute as violating the First Amendment and being overly broad and vague. The majority rejected his arguments finding that his action was unprotected commercial speech for First Amendment purposes. The majority also found he lacked standing to challenge the statute on First Amendment grounds for third parties.

The court found Jaynes admitted that the emails he sent contained intentionally false and inaccurate routing and header information “intended to shield Jaynes from accountability for his sales schemes. At trial, it was disclosed that Jaynes had compact discs containing over 175 million full email addresses and 1.3 billion email user names. The court concluded that it was reasonable that Jaynes cannot challenge the statute on First Amendment grounds because of his actions.

The majority also found that Jaynes could not challenge the statute as being overly vague and broad because he “could not reasonably be unaware from the language of the statute that his multiple transmission of more than 10,000 e-mails within the proscribed period violated subsection (B). His claim that he would not understand what constituted ‘unsolicited bulk electronic mail’ is without merit in the clear contest of subsection (b) of the statute,” the court wrote. “The bulk e-mails were plainly unsolicited given the evidence at trial that Jaynes had received a list of stolen e-mail addresses of AOL customers and there was no evidence of any recipient requesting or consenting to the e-mails.”

The three dissenting justices found the Virginia statute was an unconstitutional restraint of free speech under the First Amendment. The dissent found the statute was not narrowly tailored to protect the compelling interests of the state 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. “[B]ecause e-mail transmission protocol requires entry of an IP address and domain name of the sender, the only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name” which violates the statute, the dissent found. “By prohibiting false routing information in the dissemination of e-mails, Code Sec. 18.2-152.3:1 infringes on that protected right.”

Jeremy Jaynes v. Commonwealth of Virginia, Virginia S. C. No. 062388, issued February 29, 2008.