In the wake of the recent Virginia Supreme Court ruling overturning the conviction of spammer Jeremy Jaynes, there is a firestorm of controversy now building online. The heart of the matter is that the ruling centered on the wording of the 2003 Virginia law, calling it “unconstitutionally overbroad,” which, while protecting the U.S. First Amendment, also allowed a spammer to wriggle off the hook. So, was the court correct in its decision?
Freedom of speech is something people have died and fought for since its inception. The First Amendment of the U.S. Constitution ensures that any U.S. citizen is given the right to speak, write, and say anything they want when expressing an opinion. You may not agree with what they say, but it is their right to say it.
There are a few limits to freedom of speech however, such as shouting “FIRE!” in a crowded building or making direct threats to a person with the intent to frighten or coerce them into your line of thinking — to name but two. Yet, the fact remains that most forms of communication are protected and some are taking the stance that spammers are equally protected as well, simply because of the wording used in the recent ruling handed down by the Virginia Supreme Court.
The ruling, which has caused much debate and commentary, focuses on the 2004 conviction of spammer Jeremy Jaynes. In a nutshell, while Jaynes did not contest the accusations made against him with regard to sending Spam, his appeal now centers on the wording in the Virginia law that make it illegal to send e-mail with false routing and header information.
The Virginia law makes it a felony and mandates jail time should a person send more than 10,000 e-mails within 24 hours or 100,000 within a rolling 30-day period. Also, if the e-mails resulted in profit for the sender ($1000 USD or more) then additional charges can also be filed.
However, Virginia Justice G. Steven Agee said that the law, “prohibits the anonymous transmission of all unsolicited bulk e-mails including those containing political, religious or other speech protected by the First Amendment.”
Agee also made the connection to sending The Federalist papers over anonymous e-mail. “For example, were the Federalist Papers just being published today via e-mail, that transmission by PubliAus would violate the statute.”
Thus you have the heart of the matter; namely the Virginia law is missing selective wording that outlines what types of e-mail would be protected and what would be considered a violation. Specifically, because Jaynes’ case used the present form of the law as it stood to convict him, it would appear to have violated his First Amendment rights.
The Virginia Supreme Court rejected arguments that the Spam law was a trespass law aimed at protecting the e-mail servers of large ISPs and private companies. The rejection is because of the removal of the right to hide information, such as the originating network where the e-mail was sent from (IP spoofing), or the return address. Spoofing e-mail headers is a well-established trick and the law should make it illegal to do so, as it does in some cases, but the court argues that doing so should not infringe on the First Amendment.
“Because e-mail transmission protocol requires entry of an IP address and domain name for the sender, the only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name,” Agee wrote.
Lawyers and experts have subsequently come out of the woodwork, on top of the expressive comments made by normal Internet citizens, to vent their frustrations against the ruling. Most of the comments centered on the ruling’s mention of political expression over commercial e-mail. Since the Virginia law never separated the two, they are considered equal under the statute.
This is not true, but that is the danger the court sees. Thus it reversed Jaynes’ case. However, another interesting twist is that the court upheld the very same laws it recently reversed only six months ago. So this ruling reversed its entire stance on the issue.
Jon Praed, an attorney with Arlington-based Internet Law Group, told the Washington Post that: “Every kindergartner learns the idea of keeping your hands to yourself. Does the Constitution really require us all to post ‘No Trespassing’ signs on our homes — or our mail servers — to remind the world the dwelling isn’t open to the public and the mail server is not a soapbox to be used and abused by anyone who thinks they have something to say?”
Virginia Attorney General Bob McDonnell said he plans to appeal the ruling. “Today, the Supreme Court of Virginia has erroneously ruled that one has a right to deceptively enter somebody else’s private property for purposes of distributing his unsolicited fraudulent emails. I respectfully but fervently disagree. We will take this issue directly to the Supreme Court of the United States. The right of citizens to be free from unwanted fraudulent emails is one that I believe must be made secure.”
Again, the wording of the law is what is in error. This is what the court centered on. Yet, there are several methods to prevent “unsolicited fraudulent emails,” as Spam blocking is all the rage in corporate and home security solutions.
Jaynes is a spammer. However, did Justice G. Steven Agee do the right thing? Was this law a knee-jerk reaction from local lawmakers and poor policy drafting? Should spammers be afforded the same protections as political activists if they mix Spam and politics in the same e-mail?
Where do you stand on the issue? Feel free to sound-off below.