Va. Ban On Spam Is Ruled Unlawful

"Horrendous," said Jon Praed of the Internet Law Group, which has represented America Online, Verizon and other Internet providers. "The idea that someone can intrude on someone else's mail server, because they might be reciting the Gettysburg Address? I guess a burglar can break into your home as long as they are reciting the Gettysburg Address."

Praed noted that spam is not likely to increase in Virginia just because the law has been struck; federal law also prohibits spam, spam filters screen much of it and expert spammers often are out of the country. But spam does provide links to dangerous and illegal places on the Web, particularly for young users, as well as inject viruses and other bad software into computers, giving lawmakers a compelling reason to regulate it, Praed said.

The U.S. Internet Service Providers Association estimated that 90 percent of e-mail is spam. Internet service providers "should not be required to bear the cost of the abuse of their e-mail networks," said Kate Dean, executive director of the association, which filed briefs in support of the law.

Jaynes was convicted by a jury of sending tens of thousands of e-mails through America Online servers in Loudoun. Jaynes's e-mails were advertising products to help pick stocks, erase one's Internet search history and obtain refunds from FedEx and contained hyperlinks within the e-mail redirecting the recipient to those businesses. His attorney Thomas M. Wolf of Richmond noted that there was nothing fraudulent about the e-mails; Jaynes was prosecuted simply for sending them en masse.

"Everybody hates spam," Wolf said. "The point is, you don't have to trample the Constitution to regulate spam."

Virginia's anti-spam law made it a misdemeanor to send unsolicited bulk e-mail by using false transmission information, such as a phony domain name or Internet Protocol address. The domain name is the name of the Internet host or account, such as "aol.com." The Internet Protocol is a series of numbers, separated by periods, assigned to specific computers. The crime becomes a felony if more than 10,000 recipients are mailed in a 24-hour period.

Chris Thompson, a spokesman for Spamhaus, an international nonprofit group that tracks and combats spammers, pointed out that unlicensed radio stations may not broadcast, only the Postal Service can place mail in mailboxes and loud sound trucks may not troll neighborhoods with impunity.

"None of those minor restrictions appear to infringe on a citizen's ability to express themselves freely," Thompson said. "Why the court would deny basic protections for ISP servers and bandwidth escapes us."