First spam felony conviction upheld: no free speech to spam

Virginia's Supreme Court on Friday upheld the first US felony conviction for spamming. The spammer will serve nine years in prison for sending what authorities believe to be millions of messages over a two-month period in 2003.

Jeremy Jaynes is the man who will make history. A Raleigh, North Carolina, resident who made Spamhaus' top 10 list of spammers, Jaynes was arrested in 2003 even before the CAN SPAM act was passed by Congress. Jaynes was convicted in 2005, but his lawyers appealed the conviction. This past Friday, the Virginia Supreme Court upheld that conviction, but the vote was a narrow 4-3.

The prosecution presented evidence of over 53,000 illegal e-mails that Jaynes sent over just three days during July, 2003, but it is believed that he sent 10 million messages per day between July and August of that year. Though he is a North Carolina resident, Jaynes was charged in Virginia because the AOL servers he used for sending spam were located in Loudoun County, Virginia.

While defending Jaynes, his lawyers attempted to argue that a provision of the Virginia Computer Crimes Act violates constitutional First Amendment rights to "anonymous speech," as well as the interstate commerce clause of the US Constitution. The court rejected these claims due to Jaynes' use of fake e-mail addresses, which breaks the US CAN SPAM law's condition of giving recipients a means of contacting the sender. The court also stated that his peddling of scam products and services excludes him from First Amendment rights. In effect, the court said that you can't scam people and then cry "free speech!" when hooked by the law.

While one might think that Jaynes' case should have been open and shut, Justice Elizabeth Lacy highlighted some of the reasons behind the close 4-3 verdict, along with the potential dangers of vague anti-spam legislation. In her written dissent, Lacy argued that the "unsolicited bulk electronic mail" provision of Virginia's Computer Crimes Act is "unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mail including those containing political, religious or other speech protected by the First Amendment to the United States Constitution."

Still, the court upheld Jaynes' original 2005 sentence of three years in prison for each of the three Virginia Computer Crimes Act code violations for which he was found guilty. For those playing along at home, that's nine years in the pokey.

The lesson? Spam doesn't pay, unless you live outside the US. But that's a story for another day.