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Va. Ban On Spam Is Ruled Unlawful
E-Mail Restriction Called Violation of First Amendment

By Tom Jackman
Washington Post Staff Writer
Saturday, September 13, 2008

The Virginia Supreme Court yesterday ruled that the state's anti-spam law, designed to prevent the sending of masses of unwanted e-mail, violates the First Amendment right to freedom of speech.

Virginia Attorney General Robert F. McDonnell (R) promptly said he would appeal the case to the U.S. Supreme Court. The law was one of the first enacted in the United States to stem the overwhelming tide of unwanted e-mail. The 2004 trial in Loudoun County of mass e-mailer Jeremy Jaynes resulted in the first felony conviction in the country for spamming.

But the state Supreme Court said the law doesn't make any distinction between types of e-mail or types of speech, and so it was unconstitutional. The ruling came on an appeal of Jaynes's conviction. Jaynes had sent the mass e-mails anonymously by using false Internet addresses, and the court said that speech is also protected by the First Amendment.

Justice G. Steven Agee, who has since moved to the U.S. Court of Appeals for the 4th Circuit, wrote the unanimous opinion for the court. "The right to engage in anonymous speech, particularly anonymous political or religious speech, is 'an aspect of the freedom of speech protected by the First Amendment,' " Agee wrote, citing a 1995 U.S. Supreme Court case.

"By prohibiting false routing information in the dissemination of e-mails," the court ruled, Virginia's anti-spam law "infringes on that protected right."

Agee noted that "were the 'Federalist Papers' just being published today via e-mail, that transmission by 'Publius' would violate the [Virginia] statute." Publius was the pen name for James Madison, Alexander Hamilton and John Jay.

The court determined that the law does not limit its restrictions on spam to commercial or fraudulent e-mail or to such unprotected speech as obscenity or defamation. Many other states and the federal government drafted anti-spam laws after Virginia, but often specifically restricted the regulations to commercial e-mails, the court found. The ruling affects only the Virginia statute.

McDonnell called the law an innovative act that broke new ground in protecting citizens, and he noted that Jaynes was rated one of the most prolific spammers in the world. Loudoun Circuit Court Judge Thomas D. Horne sentenced Jaynes, of Raleigh, N.C., to nine years in prison but allowed Jaynes to remain free while his appeals were heard.

"The Supreme Court of Virginia," McDonnell said in a statement, "has erroneously ruled that one has a right to deceptively enter somebody else's private property for purposes of distributing his unsolicited fraudulent e-mails. . . . We will take this issue directly to the Supreme Court of the United States. The right of citizens to be free from unwanted fraudulent e-mails is one that I believe must be made secure."

The court's ruling was remarkable for another reason: It reversed its own ruling of six months ago, when the court upheld the anti-spam law by a 4 to 3 margin. But Jaynes's attorneys asked the court to reconsider, typically a long shot in appellate law, and the court not only reconsidered but changed its mind. Agee wrote both opinions.

"I think the decision is a sound one," said Rodney A. Smolla, dean of the Washington and Lee University Law School and a First Amendment scholar. "This is a case in which the spammer may have been doing things that a well-crafted law could make illegal. The problem with the Virginia law is it included e-mail communications that people have the right to make anonymously."

There was plenty of disagreement, particularly among those who provide Internet service or battle spam.

"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."

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