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Why Virginia is right to overturn spam conviction

Whoops! State legislators didn't do their homework when writing an antispam law, which a court said unreasonably banned perfectly legitimate use of e-mail pseudonyms.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read

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.