Anti-spam case granted rehearing

The first felony spam conviction in the US will be revisited, calling into question laws applied to commercial vs. noncommercial spam.

The Supreme Court of Virginia on April 28 agreed to a limited rehearing of its decision against Jeremy D. Jaynes, who was sentenced to nine years in prison for violating Virginia’s 2003 Anti-Spam Act in February.

The court had originally upheld three convictions against Jayne by a close vote, 4-3. His case now awaits briefing on both sides, to be followed by oral arguments. Jaynes’ lawyer, Thomas M. Wolf of law firm LeClairRyan, expects those arguments to take place some time this June.

Wolf said that the February decision “failed to recognize Jaynes’ right to attack the statute under which he was convicted by showing that it infringes on the free speech rights of others.” Jayne’s defense is that the state’s Anti-Spam Act is unconstitutional “because it infringes on the right to speak anonymously in political and other noncommercial e-mail,” Wolf explained.

Many hailed the original decision as a milestone in ending spam. Jayne has been under house arrest since his first conviction in 2004. He was prosecuted in Virginia for sending almost 46,500 e-mails with falsified routing and transmission information through AOL’s Loudoun, VA-based network during a three-day period in 2003.

“The Supreme Court of Virginia’s February 29 decision was a major victory for anti-spam legislation, for consumers, and ultimately for electronic commerce,” said J. Martin Tucker, spokesman for Virginia Attorney General Bob McDonnell. “The decision to rehear a small portion of the appeal certainly threatens that victory.”

Tucker added that the office was confident that the court would uphold its previous decision, also explaining that the rehearing addressed a narrow issue: “whether state courts can develop their own rules of overbreadth standing.”

While the federal anti-spam statute prohibits senders of commercial unsolicited bulk e-mail from changing self-identifying information in the e-mail, Virginia law does not distinguish between commercial unsolicited bulk e-mail and non-commercial bulk e-mail.

Wolf contended it was this difference that made the constitutionality of the law subject.

“The problem with spam is commercial e-mail, not noncommercial,” he said. “Commercial speech is not entitled to the same degree of constitutional protection as noncommercial and can be easily regulated … Virginia could and would easily amend its anti-spam statute to apply only to commercial e-mail.”

However, Tucker disagreed. He said: “While the Constitution treats non-commercial speech differently from commercial speech, non-commercial unsolicited bulk e-mail has the same impact as commercial unsolicited bulk e-mail. The problem is spam, not the content of spam.”

The Virginia court is not reconsidering its holding that the Act is constitutional as applied to Jaynes, who sent bulk e-mail advertisements for computer programs and stock pickers.

“The only context where it might be unconstitutional is as applied to non-commercial unsolicited bulk e-mails where the Internet service provider actually welcomes spam,” Tucker said. “There is no such Internet service provider and, if there were, there are serious questions as to whether the law would even apply.”

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