VA. APPEALS COURT
Anti-Spam Conviction Is Upheld
Wednesday, September 6, 2006
The Court of Appeals of Virginia upheld yesterday what is believed to be the first conviction in the nation under a state anti-spamming law that makes it a felony to send unsolicited mass e-mails.
A North Carolina man was convicted in Loudoun County two years ago of illegally sending tens of thousands of e-mails to America Online customers. Prosecutors said Jeremy Jaynes flooded the servers at the Internet company's headquarters in Loudoun with bulk e-mail advertisements for computer programs and stock pickers.
Jaynes was sentenced last year to nine years in prison on three counts of violating the state's anti-spam law and was allowed to remain free on $1 million bond while his case was appealed. Thomas M. Wolf, an attorney for Jaynes, said he plans to appeal yesterday's decision.
Virginia Attorney General Robert F. McDonnell said in a statement that his office will ask the court to revoke bond and order Jaynes to begin serving his sentence. The attorney general applauded the appeals court decision, saying the three-year-old anti-spam law helps keep Internet users "safe and secure."
"Today's ruling reinforces Virginia's anti-spam act and further protects the people of the commonwealth from identity thieves and cyber criminals," McDonnell said.
Jaynes's attorneys argued in their appeal that the Loudoun court had no jurisdiction over the case because the e-mails were sent from Jaynes's home in North Carolina. The appeal also contended that the anti-spam law restrains the constitutional right of free speech protected under the First Amendment.
But the three-judge panel disagreed, ruling in an opinion written by Judge James W. Haley Jr. that circuit courts have exclusive jurisdiction over felonies committed in their areas. The anti-spam law, Haley said, "prohibits trespassing on private computer networks through intentional misrepresentation, an activity that merits no First Amendment protection."
Wolf argued that the anti-spam statute was too broad. Moreover, he said, efforts to enforce the law could snare well-intentioned citizens in other states who send out harmless e-mails under anonymous names that pass through servers in Virginia.
"You purchase an e-mail address list, alter the transmission information in the header of your e-mail to avoid retaliation, and on Easter morning send out a three-word e-mail to thousands of people: 'Christ is risen!' You have committed a felony in Virginia," Wolf said.
John Whitehead, president of the conservative Rutherford Institute, who along with the American Civil Liberties Union of Virginia filed a brief in support of Jaynes's appeal, agreed, saying yesterday's ruling would have a "chilling effect" on free speech.