Virginia State Supreme Court Holds Anti-Spam Statute Unconstitutionally Overbroad
By Jay Gill — Edited by Nicola Carah
Jaynes v. Commonwealth of Virginia
Supreme Court of Virginia, September 12, 2008, No. 062388
The Supreme Court of Virginia overturned the conviction of prolific spammer Jeremy Jaynes, unanimously reversing not only the Virginia state court of appeals, but its own earlier holding in the case. In doing so, the court held that the Virginia anti-spam statute under which Jaynes was convicted was unconstitutionally overbroad, as it did not distinguish between commercial and non-commercial instances of anonymous, unsolicited bulk e-mail. The court ruled that non-commercial anonymous bulk e-mail falls squarely within First Amendment protection and that no reasonable construction of the Virginia statute could remedy the constitutional defect.
In a press release praising the decision, the ACLU, which filed an amicus brief in support of Jaynes, wrote, “[s]peech on the Internet deserves no less First Amendment protection than in any other medium.” Jon Praed of the Internet Law Group took issue with the court’s characterization of the situation, telling the Washington Post: “I guess a burglar can break into your home as long as they are reciting the Gettysburg Address.” John Levine, president of the Coalition Against Unsolicited Commercial E-mail, and an expert for the prosecution in Jayne’s jury trial, argues that IP forgery is a red herring and points out that there are a variety of alternatives to send anonymous emails. Nonetheless, he commented, “I don’t see it as a fatal setback for anti-spam law.” According to Levine, Virginia’s statute was unique in prohibiting noncommercial spam, and other statutes, including the federal CAN-SPAM act (which took effect after Jaynes’s arrest), do not contain the flaw that led to the result in this case.
Jaynes used several computers in his North Carolina apartment to send unsolicited bulk e-mail to @aol.com addresses, which had been stolen and given to him by a former AOL employee. The e-mails advertised penny stocks, FedEx refund claims, and a “history eraser” product, and all carried falsified routing information to disguise Jaynes’s identity. On at least three occasions, he sent over 10,000 email in one day, a threshold that elevated the crime to a felony under Virginia Code § 18.2-152.3:1. A jury convicted him and he was sentenced to nine years in prison.
Virginia’s Anti-Spam Statute
Virgina’s anti-spam statute prohibited, in relevant part, “falsify[ing] or forg[ing] electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail.” The court found this language to be substantially overbroad, as it did not exclude non-commercial language, such as political and religious speech, that may be distributed in anonymous, bulk form over the Internet. Since including false header information is the only way to send e-mail anonymously, and anonymous speech is protected under the First Amendment, the court reasoned that by prohibiting the falsification of header information in the non-commercial context, the statute impinged on protected First Amendment speech. Dismissing the Commonwealth’s argument that such overbreadth was too insubstantial to warrant striking down the statute, the court noted that, “were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute.” The court refused to apply a limiting construction to the statute that would cure the constitutional defect, stating that to adopt such a construction “would be rewriting Code § 18.2-152.3:1 in a material and substantive way.”
Before the state supreme court, Jaynes also argued lack of personal jurisdiction, as he only used the computers in North Carolina. The court found that, because he was aware he was sending to AOL subscribers (due to @aol.com domain on the addresses), and that it was public knowledge that AOL’s headquarters and servers are in Virginia, his acts were sufficiently directed at the state of Virginia to allow the exercise of jurisdiction. The court then entered into a complex analysis of standing, eventually concluding that Jaynes had standing to raise a constitutional overbreadth argument (as opposed to a pure facial or an as-applied constitutional challenge).
Katherine Wong authored a Note on the CAN-SPAM act and federal preemption on state anti-spam statutes in 20 Harv. J. L. & Tech. 459 (2007).