Why Virginia is right to overturn spam conviction

The Virginia Supreme Court on Friday overturned the conviction of a notorious AOL spammer, the first spamming defendant to be convicted of a felony, saying the state junk e-mail law is too broad and violates the First Amendment.

This is a remarkable decision (PDF). But a close reading of the Virginia statute shows that it is the right one.

The law in question is kind of the state equivalent of the Can-Spam Act, though with exclusively criminal penalties. It says:

A. Any person who: 1. Uses a computer or computer network with the intent to falsify or forge electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers...is guilty of a Class 1 misdemeanor.

If someone violates section (A) by transmitting unsolicited bulk e-mail to 10,000 attempted recipients in a 24-hour period, 100,000 attempted recipients in a 30-day period, or 1 million attempted recipients over one year--well, then the criminal penalties jump from a misdemeanor to a felony.

What's notable about this law, and what made it vulnerable to First Amendment challenge, are two characteristics. The first is that it applies to the falsification of e-mail information, which could sweep in both spammers and, say, someone using a pen name or pseudonym. And we know, despite efforts under way at a United Nations agency, that the First Amendment clearly protects anonymous speech.

The second characteristic is that the law regulates both commercial and noncommercial e-mail, meaning that political speech would be covered as well. (Now, it's not clear that commercial speech deserves to be treated as a second-class citizen, but courts have generally said it's OK to slap more regulations on it.)

Let me stipulate at this point that, especially as someone who runs his own mail server, I have no love for spammers. The defendant here, Jeremy Jaynes, has been estimated to be the world's 8th most prolific spammer, believed to have received up to $750,000 a month from his efforts. Horsewhipping is too good for these knaves.

But when tech-impaired politicos devise measures to imprison spammers (a worthy goal, that), those laws must not go too far and sweep in legitimate activities too. Virginia's did, as the state Supreme Court concluded, with some help from the ACLU's Virginia affiliate. Excerpts:

Jaynes does not contest the Commonwealth's interest in controlling unsolicited commercial bulk e-mail, as well as fraudulent or otherwise illegal e-mail. Nevertheless, Code ? 18.2-152.3:1 is not limited to instances of commercial or fraudulent transmission of e-mail, nor is it restricted to transmission of illegal or otherwise unprotected speech, such as pornography or defamation speech.

Therefore, viewed under the strict scrutiny standard, Code ? 18.2-152.3:1 is not narrowly tailored to protect the compelling interests advanced by the Commonwealth.

Code ? 18.2-152.3:1 would prohibit all bulk e-mail containing anonymous political, religious, or other expressive speech. For example, were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute.

Such an expansive scope of unconstitutional coverage is not what the Court in Williams referenced "as the tendency of our overbreadth doctrine to summon forth an endless stream of fanciful hypotheticals."

We thus reject the Commonwealth's argument that Jaynes' facial challenge to Code ? 18.2-152.3:1 must fail because the statute is not "substantially overbroad."

That statute 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 United States Constitution. Accordingly, we will reverse the judgment of the Court of Appeals and vacate Jaynes' convictions of violations of Code ? 18.2-152.3:1.

Jaynes, at the time a North Carolina resident using the pseudonym "Gaven Stubberfield," was indicted in Virginia in December 2003. In 2005, he was sentenced to nine years in prison; our coverage at the time said prosecutors estimated that he raked in up to $24 million in sales, some of which he invested in a restaurant and a chain of gyms. When police originally searched his home, they found CDs more than 176 million full e-mail addresses and 1.3 billion e-mail usernames.

It's not clear what happens next. Virginia could appeal. Companies that had their servers clogged, such as AOL, could sue. Other state prosecutors may be interested in targeting Jaynes. But action under the Can-Spam Act may be unlikely; it wasn't signed until December 2003, when Jaynes was already being arrested.

So what's the moral of this story? If you're a state legislator writing an antispam law, be very careful. Target only commercial e-mail, and be careful about wording that might make courts think you're trying to ban perfectly innocuous use of e-mail pseudonyms. If you do it right, the next Jaynes may actually stay in prison.

[imhodudes]

"Target only commercial e-mail",

Won't work. There is no bright line between commercial and non-commercial. For instance, people get by the phone anti-telemarketing laws by claiming they are doing a "survey": do you like UltraBright Tide or Improved UltraBright Tide better? Hell, they could send the Federalist Papers with small ads attached, and it would be "predominantly" protected speech.

You either eliminate spam, or you don't. ACLU, I love you, but I disagree here - there are other ways to express yourself, including a great blog, without ejaculating your spew into everyone's spam boxes.

[victor_sf]

I agree - I care about political or religious spam as much as I care about commercial spam - that is nada. With a certain web-mail provider I'm pretty well protected, but if I weren't, I'd be as reluctant to receive mail about enlarging my best part, as well as about joining the militia or for that matter from a certain well-known polygamy sect. As a matter of fact, I would even go further and would like to do something about those short-sleeved empty-headed guys that would knock on my door and try to convince me that one particular super-star was actually a native of America.

[umbrae]

Shouldn't law-makers ALWAYS be careful when writing laws? Or are we so far away from that possibility that we need to target specific laws like anti-spam.

[1egalbegal]

It is wrong to allow the spammer define the issue in terms of confusion over commercial versus political speech. No bright line is needed - the spammer should have the right to commercial or public speech so long as he is using the public square, a public forum or the public mails. But, his right should stop at my ISP connection that I pay for, and my PC resources that I own. It is commendable that the legislature was forward thinking enough to identify in the statute the key to a spammer's success, which is the repeated use of false identities; however, that is not in my mind the defining issue.

[Steve.Stapleton]

I think one may draw a legitimate distinction between sending email anonymously and sending it pretending to be someone one isn't. I use the name MacAdvisor in my email address, but that address returns to me and I pay for it. However, just as I would be in trouble for trying to open a bank account as George Bush, rather than Steve Stapleton, I shouldn't be able to send email purportedly from George Bush. Spam uses an incorrect and deliberately misleading return address. That isn't sending email anonymously, it is sending it under someone else's name. One can use an anonymizer to achieve the former, one is committing fraud doing the second. The writers of the Federalist Papers didn't try to convince readers the material was written by George Washington, as would a spammer.

[dargon19888]

So if someone were to create a fake id and falsify headers and send the federal papers to millions of people that would not be spam?

C'mon anything send unsolicited in bulk is spam, regardless of its content. This is a gross misinterpretation of the law and the civil liberties union should be ashamed of themselves.
The issue isn't the content but the fact that the messages are sent en bulk and are unrequested.

Perhaps the legislators got it right, but the courts got it wrong? Wouldn't be the first time...

[GlennAllen]

Spam is just another form of criminal trespass. Just as having "No Soliciting" signs makes soliciting at physical addresses illegal, recipients should be required to opt-in to allow spammers to "solicit" them. But that would be too simple. (I don't care what you're "selling"--some product, service, politician, religion, or whatever; if I'm ever interested, then I'll let you know. Don't hold your breath, though... or, better yet, DO hold your breath. :D)

[Dennis954]

Spam is no more a form of criminal trespass than getting junk mail in your mailbox. If spam is illegal, then it should be illegal for businesses to stuff all that crap in your mailbox! Just think of all the trees it would save! The big difference is, you just have to push the delete key to get rid of the spam, the junk mail has to be hauled out to the trash or to the recycling box. Also, under the Can-Spam act, the mailer has to identify himself, provide an address whereby the recipient can be removed from the mailing list, and the mailer has to disclose who is paying him and how much he is receiving in compensation to conduct the mailing. Why does this not apply to junk mail? There is no 800 number to call to be removed from the junk mail list, nor does the sender have to identify himself or disclose who is paying him or how much he is receiving. This seems like a double standard to me. Bottom line, make junk snail mail as well as spam illegal, or leave them both alone. If the argument can be made that junk snail mail is an expression of freedom of speech, then spam should be treated no differently.

[dosquatch]

Commercial bulk email represents a real cost to the sender. All of the junk that "has to be hauled out to the trash" costs money, the postage to get it to your box costs money, money that factors into the cost/benefit analysis and (for the most part) forces a more judicious use of the sender's resources. That is, you get better quality junk when they're paying for it than "BUY V1A GR A CHEEP! 0176"

Email is dirt cheap in comparison. It costs a fraction of a cent per message to blast out by the millions, so you need a MUCH lower return to make a viable campaign. The result is the volume goes up and the quality goes down. This is generally referred to as the "signal to noise ratio". The more noise, the less useful the signal. The more SPAM, the less useful is email.

That, and in email, the recipient bears a certain brunt of the cost of getting the message. That shifts the discussion. It is one thing to stand in the public square handing out copies of your leaflet. It is quite another to walk up to people's front doors and staple your leaflet to the property of others. That is NOT a free speech issue, that is trespass.

[dosquatch]

And, just to nitpick a smidge further, it actually IS illegal for businesses to stuff things in your mailbox. It is illegal for anyone other than the United States Post Office to use a mailbox to deliver anything. This is why you have a seperate paper box. This is why UPS, FedEx, and DHL leave packages on your doorstep. It is, in fact, illegal even for your local kid to advertise grass cutting or babysitting by putting flyers in or on your mailbox. Only parcels postage paid and delivered by postal service can use that box.

[Wookiee-1138]

The SOB would be smart to ask for protection before leaving the courthouse.

[GlennAllen]

What the Va. Supreme Court is really saying is that anyone else has more of a right to use my Inbox than I do (and, clearly, that the Va. General Assembly isn't capable of writing good, well-written laws anymore--which is mostly true).