State Spam Law Unconstitutional, Court Says

Published December 1, 2008

In 2004, North Carolina resident Jeremy Jaynes became the first person in American history to be convicted of a “felony spam” offense. This fall, the Virginia Supreme Court overturned Jaynes’ conviction by a Virginia jury.

Experts say the decision recognizes the place to enact spam policy while still protecting freedom of speech is at the federal level instead of state-by-state.

“The state law that Jaynes was prosecuted under was too broad and therefore troublesome” to the court, said Steve Titch, a technology policy analyst at the Los Angeles-based Reason Foundation. “This is one of those areas where the legality and rights issues of the Internet are better worked out [nationally].”

Spam Crackdown

According to the 2003 Virginia anti-spam law, an individual would be guilty of a felony if he or she sent more than 10,000 unsolicited bulk e-mails (UBEs) in one day, 100,000 in one month, or one million in a year, while attempting to falsify e-mail transmission information.

At the time, the law was unique, demanding felony-level penalties without typical felony behavior such as violence, fraud, or physical endangerment of victims.

Jaynes was found guilty of sending unsolicited e-mails to more than 50,000 AOL e-mail addresses. A search of his home revealed he had more than 176 million e-mail addresses and 1.3 billion e-mail usernames on compact discs. Jaynes reportedly made around $750,000 a month from his junk e-mail business.

Court Rules for Spammer

In November 2004 Jaynes was convicted and sentenced to nine years in prison—a decision upheld by the Virginia Court of Appeals and the Supreme Court of Virginia. He petitioned the Virginia Supreme Court to hear his case again, and the court overturned its previous decision and set Jaynes free from house arrest in September—declaring the Virginia anti-spam law “overbroad” and unconstitutional on First Amendment grounds.

In November 2003, Congress passed CAN-SPAM, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003. The law attempts to bypass the problems of state laws such as the one in Virginia.

Unlike the Virginia state law, the CAN-SPAM Act protects political, religious, and other speech—as required under the First Amendment—while prohibiting unsolicited commercial and pornographic e-mail.

‘Good Compromise’

Though the CAN-SPAM Act was too late to catch Jaynes, it should help deal with troublesome spammers in the future, Titch says.

“To a certain extent, you have a right to have your virtual space protected,” Titch said. Spam filters on the market “have gotten quite effective” at filtering spam, but the influx of unwanted mail is still troublesome, he added.

“The CAN-SPAM Act is a good compromise,” Titch said. “[It establishes that] the right to be left alone extends into your virtual space, but the law still respects free speech because it does not prevent the process of sending out unsolicited e-mails altogether.

“Spam filters are getting better all the time. So, in many ways, the market is responding along with the law,” Titch said.