Network News

X My Profile
View More Activity

Virginia Anti-Spam Law Overturned, Spammer Walks

The Virginia Supreme Court today struck down a state anti-spam law, saying the statute violated the First Amendment right to free and anonymous speech. The decision also tossed out the conviction of a North Carolina man once described as one of the most prolific spammers.

The Washington Post's Tom Jackman writes:

The ruling, arising from the Loudoun County criminal prosecution of Jeremy Jaynes of Raleigh, N.C., was also remarkable because the Supreme Court reversed itself: Just six months ago, the same court upheld the anti-spam law by a 4-3 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.

Jaynes was convicted in 2004 of sending tens of thousands of e-mails through America Online servers in Loudoun. He was the first person tried under the law, enacted in 2003, and Loudoun Circuit Court Judge Thomas D. Horne sentenced him to nine years in prison.

John Levine, president of the Coalition Against Unsolicited Commercial Email (CAUCE), said the court overturned the law because it sought to outlaw all forms of unsolicited e-mail, not just commercial junk mail. In contrast, he said, the federal CAN-SPAM Act limits the restriction to messages used to promote a business or other financial gain.

"Everyone agreed Jaynes was incredibly guilty, but the issue was the peculiarity of the Virginia law in that it could be read to apply to people who were sending junk e-mail but not quite as naughtily as Jaynes was doing it," Levine said. "In the United States, we have this ancient tradition where political and religious speech are very strongly protected, but the Virginia law applied equally to all speech, commercial or not."

A copy of the court's decision is available at this link here.

At least 38 states have laws regulating spam, according to the National Conference of State Legislatures. Levin said one reason anti-spam activists prefer suing spammers under state law is that the federal statute forces the plaintiff to pay the defendant's legal fees if the case is tossed out or decided in favor of the accused spammer.

Last year, a judge dismissed a junk e-mail lawsuit brought by serial anti-spam litigator James Gordon against e-mail marketer Virtumundo, ordering Gordon to pay Virtumundo $111,000 in legal fees and court costs.

Jon Praed, an attorney with the Arlington, Va., based Internet Law Group who has sued his share of spammers, lambasted the court's decision, saying it was akin to giving burglars the constitutional right to break into Virginia homes as long as they recite the Gettysburg Address while crossing the threshold.

"Every kindergartner learns the idea of keeping your hands to yourself," Praed said. "Does the Constitution really requires us all to post 'No Trespassing' signs on our homes -- or our mail servers -- to remind the world the dwelling isn't open to the public and the mail server is not a soapbox to be used and abused by anyone who thinks they have something to say?"

Levin said state lawmakers could easily fix the law simply by restricting the statute to commercial e-mail.

For his part, Virginia Attorney General Bob McDonnell said he intends to appeal the case to the U.S. Supreme Court.

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

Jaynes, who has been under house arrest in Loudoun since his conviction in 2004, could not be immediately reached for comment.

By Brian Krebs  |  September 12, 2008; 9:10 PM ET
Categories:  Cyber Justice  
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   StumbleUpon   Technorati   Google Buzz   Previous: Web Fraud 2.0: Fake YouTube Page Maker Helps Spread Malware
Next: iPhone Update Plugs Eight Security Holes


Supreme Idiots

Posted by: oxymoron | September 12, 2008 9:49 PM | Report abuse

VA just needs to change its law to limit spamming to commercial emails. The way it now exists, a modern-day Thomas Paine or Thomas Jefferson could be jailed for "spamming" for liberty.

Posted by: T.J. | September 12, 2008 10:20 PM | Report abuse

Well, perhaps they can work around this.

Have the law apply to all coorperate spam. This isn't free speech, it's advertising...

Internet spam makes up 98% of all web traffic.

Posted by: Dalton | September 12, 2008 10:45 PM | Report abuse

It is -not- a spammer's right of free speech to use my paid-for property (Internet connection) to shove any speech down my throat. Spammers of any sort use up my connection's data quota without compensation to me. I paid for the connection and the data quota, spammers have no right to use it.
End of free speech argument. And don't blame the ISP's, most provide a connection service under specific terms banning spamming as an abuse of service. Suppose my cable tv was inundated by non-stop marketing on all channels, which also inhibited regular programming... or non-stop any content not specifically paid for... that is not free speech. IF spammers identified themselves and paid a fee compensatory enough for ISP's to provide free connections to everyone else... then it would be a different matter. It would be live tv and radio where I don't ask for the commercials there either. Spammers of any content are an abuse of service provided.

Posted by: RR | September 12, 2008 11:03 PM | Report abuse

The court’s ruling is wrong on so many levels that it’s hard to know where to begin.
There is no such thing as a right to anonymous speech. Just as it is not a violation of free speech when a newspaper chooses not to publish a letter, a website takes down a forum post, or a shopping center prohibits protestors from setting up soap boxes, there can be no claim on private parties to surrender access to their email servers for religious or political email rants.

Individual rights are a reciprocal concept, which means that you can’t have a right to violate someone else’ rights just because you think it accomplishes something important for the collective. I must concede, however, that this critical principle underlying a free society is now systematically violated by both congress and courts (i.e., Kelo vs. New London). Today the call of the collective trumps all.

If the judges value the ability of people to make anonymous email statements, then they can donate to setup publicly accessible servers that anonymize emails -- as hundreds of people around the world have _already _done (Ref: TOR project). Or as there is indeed a market for the ability to be anonymous (mostly for adult rather than religious reasons), one can start a business or pay someone for access to anonymous servers. The court demonstrated its incompetence in not being aware that such ability is in fact widespread. But this is a point that properly should not be considered for a finding of fraud.

Posted by: VCU Grad Student | September 12, 2008 11:10 PM | Report abuse

It would be interesting to know if the Virginia Supremes actually understand the structure of the internet. That this guy was misappropriating other people's property. My guess is their understanding is blurry and incomplete. Unless they're known for other incomprehensible rulings.

Posted by: kfritz | September 12, 2008 11:13 PM | Report abuse

Spam is spam. It doesn't matter what the subject or pupose is. If you didn't ask for it it's an invasion of your mailbox. Hang him in the town square. People in this country have no backbone. When they set him free let the people of VA use his body to send their courts a real message. Somebody post their e-mail addys so we can all spam them with unwanted e-mails.

Posted by: Hang'em | September 12, 2008 11:19 PM | Report abuse

The use of the term “unsolicited” completely misrepresents the proper legal issue. Companies/service providers can have policies that ban solicitors and can then ask the government to prosecute those who violate their property and “trespass” physically or electronically. But the government itself should have no blanket preemptive ban on unsolicited communications. The crime here is the fraudulent misrepresentation of the source and/or nature of the communication, which others have noted results in misappropriation of your time and resources.

Posted by: Grad Student in VA | September 12, 2008 11:28 PM | Report abuse

I bet the court would flip if it's members received hundreds of virus infested spams each day.

I had to change my email address to stop it.

Posted by: Spammed | September 13, 2008 12:22 AM | Report abuse

If someone bombards me with corporate America's lowlife money grubbing advertising, does that mean I have the right to tell the internet that the advertiser is a front man for Israeli intelligence, a member of the drug cartel, or Osama bin Laden? Should consumers start using the internet to repay these cockroaches in kind? What recourse does the consumer have when the courts are in league with the voracious money grubbers that will stoop to any depth to deceive the public???

Posted by: pop up assassin | September 13, 2008 2:41 AM | Report abuse

The Constitution may guarantee someone the right to talk, but it doesn't force me to listen. Spam uses my email client resources and Kaspersky's on my machine. If I could identify the spammer I'd send the scumbag a bill.

Posted by: NCMoosebert | September 13, 2008 8:15 AM | Report abuse

The government, gotta love it. They fully encourage the overwhelming influence of political lobbies over American discourse. These are the groups that, in practice, eliminate the freedom of speech. Speech can no longer be considered free if it's at the cost of one's career and reputation. Yet, when it comes to reporting what Britney Spears had for breakfast, or stopping junk mail, OH! Then the first amendment is their guiding light!

Posted by: George M. Bush | September 13, 2008 8:38 AM | Report abuse

The asylum run by the inmates
I wonder if they will also give back his computer and a life time subscription to Aol !!

Posted by: GD | September 13, 2008 8:47 AM | Report abuse

There has to be some common sense applied here. I find this similar to the unsolicited telephone calls we used to get.
We (the government) finally put together the "NATIONAL DO NOT CALL REGISTRY"
Is it too much to expect that the same is applied to spam???

Posted by: Floydk in CA | September 13, 2008 9:15 AM | Report abuse

The seven dwarves strike again. They continue to be a disgrace to the Commonwealth of Virginia and the nation.

Posted by: Raleighwood | September 13, 2008 9:17 AM | Report abuse

"Supreme Idiots"

... I totally agree.

Posted by: dolpa | September 13, 2008 9:22 AM | Report abuse

Virginia Supreme Idiots, I mean Court...

Posted by: Jeremy Jaynes Spam Recipient | September 13, 2008 9:53 AM | Report abuse


Posted by: artificial gripe | September 13, 2008 9:54 AM | Report abuse

The judgement, at least the way its reported makes a mockery of human rights and decency.

The US has lost its way in providing for sensible rules to protect the majority of citizens.

Posted by: Miro Wang | September 13, 2008 10:02 AM | Report abuse

And you can still go to jail for downloading a song from a friend who owns the album...Nice.

Posted by: BDH | September 13, 2008 10:20 AM | Report abuse

Typical Lefty LIBERAL 'Supreme' decision.
They have continually ruined this country
with such outrageous judgements. Pathetic.

Posted by: DC70 | September 13, 2008 10:20 AM | Report abuse

Forward all spam to the Virginia Supreme Court!

Posted by: rd | September 13, 2008 10:29 AM | Report abuse

This is BS! And why in the world was this idiot on house arrest for the last 4 years instead of sitting in prison where he clearly belongs!?

Posted by: VIlly | September 13, 2008 10:43 AM | Report abuse

I agree with the court's decision, this man should have never gone to prison in the first place. Who cares if you get spam? That's what spam filters are for. Sending emails to people who might not want them shouldn't be illegal. Just like regular mail, you get a bunch of advertisements and you just throw them away if you don't want them.

Gmail's spam filters pretty much take care of everything anyway. So what's the big deal? I don't spend any of my time reading spam.

Posted by: david | September 13, 2008 10:47 AM | Report abuse

All anti-spam software does is try to capture the spam in a container. I say send that spam crap right back to its originating source.

Any software developers out there up to the challenge? The world would love you for that!

Posted by: great idea | September 13, 2008 11:03 AM | Report abuse

>Re: (David) "Who cares if you get spam?"

Are you not paying attention? Spam filters are not free. Someone has to write the code, purchase, install, administer, etc. These creeps are costing American businesses $Millions (citation needed). Besides, his intent was not to recite poetry to all of was to SCAM us out of our hard-earned money!

Posted by: Gavin | September 13, 2008 11:05 AM | Report abuse

>Re: (Gavin) "Spam filters are not free."

There are many free spam filters. My favorite one is "Apache SpamAssassin, The Powerful #1 Open-Source Spam Filter". Companies wouldn't have to spend millions developing their own filters if they just used this one.

Posted by: david | September 13, 2008 11:11 AM | Report abuse

Spammers are capable of forging the return address on their messages.

My domain gets hundreds of bounced emails per day from servers bouncing the spam back to a forged address at my domain.

If I set up filter to bounce the bounces an infinite spam echo could result.

Posted by: no source | September 13, 2008 11:15 AM | Report abuse

where do they live? these spammersa copst me time and money
we will use them for crab bait
a waste of time in legal system in corrupt USA
best they go away
all spammers need their addresses posted so those that act, can act

Posted by: Senor Pescado | September 13, 2008 11:16 AM | Report abuse

Hey, let's forget the fact that your 1st amendment right applies only if it doesn't interferes with other citizens rights. I have a hard time seeing how spamming is not the same as telemarketer harrassment, which by the way IS illegal and companies get fined heavily for it. Perhaps the Judges behind this ruling would like to make their personal email addresses readily available as well as their mailing addresses so that we all have the right to practice our right to free speech.

Posted by: Simon | September 13, 2008 11:20 AM | Report abuse

Posted by: great idea | September 13, 2008 11:25 AM | Report abuse

Gmail's spam filter isn't perfect, so I still have to waste my time going through the spam folder to be sure that an e-mail sent to me with key words inadvertently used in the subject line isn't being filtered.
I don't feel that my bad experience with this is worth sending this low life to prison, but taking into consideration the multiplication of this waste of time by how many spam e-mails were sent, I wouldn't have a problem with it.
Jerry w

Posted by: jerry w | September 13, 2008 11:26 AM | Report abuse

>Re: (no source) "Spammers forging the return address"

They can change return addresses, but even Spammers have originating IP addresses.
What say developers? Can you help us out?

Posted by: great idea | September 13, 2008 11:33 AM | Report abuse

Re: great idea

I'm pretty sure most spammers don't have mailboxes set up to receive email.

Posted by: david | September 13, 2008 11:42 AM | Report abuse

Re: david

You sure know alot about spammers. You also defended the courts ruling.

Just curious here, but
Do you have a mailbox set up?

Posted by: great idea | September 13, 2008 11:47 AM | Report abuse

"Supreme idiots".

Hahahaha. So true. eF the internet and all the spamming and scamming going on.

Posted by: kornaz | September 13, 2008 11:55 AM | Report abuse

The bottom line is that instead of sending someone to jail, they should have to pay a $1 for each spam that they sent and the funds sent to food pantries or homeless shelters. One comment was that they had too pay for the connection so sholdn't have too put up with spam, well you pay for satalite TV but have advertisements. I would much rather get spam that I can delete (a few checks and a click, their gone) then all the advertizement in the mail, that fill the trash and landfiles with. There certainly are more important things going on today them worring about some spam mail.

Posted by: Bert | September 13, 2008 12:13 PM | Report abuse

The legislature screwed up. They should have made spamming a capital crime with immediate execution. That way scumbag lawyers and corrupt judges couldn't get the spammer off four years after his conviction.

Posted by: JohnCarter | September 13, 2008 12:27 PM | Report abuse

The official position seems to be that people have NO right to privacy. This isn't just related to spam. It is equally pervasive in the trade for private information extracted by many businesses in partial exchange for services individuals desire.
The default position is that a person's privacy can be invaded without challenge UNLESS that person specifically states that their privacy UNDER SPECIFIC CIRCUMSTANCES must not be disturbed. Junk mail, telephone calls, spam, must be individually called out to stop them. The default position really needs to be inverted so that organizations DON'T make use of private information, or make unrequested contact with individuals unless they have specific permission from that individual. It's getting to the point where I have to read the fine print in every commercial communication to be sure I'm not giving them permission to divulge my private information, simply because I don't respond to the communication and state specifically that I don't want my information divulged.
This is utterly WRONG - just WRONG!
Maybe one way to get things improved is to send weekly reminders to people in positions to change things for the better, telling them that it's time to protect the privacy of individuals. Stopping spam is a good start, but it needs to go much further than just spam. At least their email volume would go down if they did the right thing!

Posted by: QuietJohn | September 13, 2008 12:37 PM | Report abuse

I agree that It is -NOT- a spammer's right of free speech to use my paid-for property (Internet connection) to shove any speech down my throat. I would like to forward all my SPAM to Virginia so they can swim in the free speech being shoved down my throat. Good Call Virginia Supreme Court (insert sarcasm here)!

Posted by: Lawrence | September 13, 2008 12:48 PM | Report abuse

Once they get control of real (snail) junk mail that the USPS puts in my box daily maybe they will be prepared to take on cyberspace. Unlikely though. Most of the people writing these laws and ruling on them still think of the internet as a "series of tubes..."

As long as the businesses profiting from spam pay taxes there is no reason for the feds to stop them.

Posted by: Mike | September 13, 2008 1:32 PM | Report abuse

1. Make a new law
2. Violate the First Amendment
4. ?????
5. PROFIT!!!!

Posted by: AnonymousXXX | September 13, 2008 1:34 PM | Report abuse

Im going to send spam to them right now.

Posted by: supreme court | September 13, 2008 1:58 PM | Report abuse

Well.... Of course 'the' court ruled in favor of the 'criminal.' And.... The anarchistic liberal judges that 'occupy' the courts will continue, unless we remove them.
A vote for Obama.... He will CHANGE the Supreme Court to all Liberals and will CHANGE all the lower courts to Liberals.

LAWLESSNESS will become the new law of the land. Anarchy will rule. Obama will rule.

Posted by: zephyr | September 13, 2008 2:17 PM | Report abuse

Ever since the republicains decided that Companies have the same free speech rights as people we have been getting these types of wacky court decisions.

If the founding fathers wanted commercial speech to be protected by the first amendment they would have writen "We the corperations" instead of "We the people".

Posted by: Mungo | September 13, 2008 2:40 PM | Report abuse

Wait, you mean there's cases in which courts make LOGICAL decisions?

Posted by: Anarchist | September 13, 2008 2:47 PM | Report abuse

Still think that when this is dissected by future historians, the title will be "Spam White and the Seven Cyber-Trogs."

Posted by: Kfritz | September 13, 2008 3:12 PM | Report abuse

This crap filling my inbox is causing REAL measurable value HARM to my ability to conduct my pursuit of life liberty and happiness. This is NOT free speech! You can stand on a street corner and SAY anything you bloody well want, unless it's about the constitution then you'll get arrested! Nothing more than corporate pandering by the government yet again. You sheep will not wake up until there is more blood shed. IT'S NOT COMPLICATED!!! If you infringe on my right to life liberty and happiness, THAT IS NOT A RIGHT YOU POSSESS!!! We are not owned by the government or the corporations! Bah, this is pointless...

Posted by: TheyAreWrong | September 13, 2008 3:12 PM | Report abuse

The V.S.P. must have suffered group brain drain to come up with that ruling.

However, all people need to do is set their email to known senders only, which they should have been doing already.

Posted by: I hate spammers | September 13, 2008 5:26 PM | Report abuse

Simply solution - spamming on more than one occasion should be a capital offense. Euthenize a few of these spammers and spam will scale back!

Posted by: W. | September 13, 2008 5:45 PM | Report abuse

When you use services I pay for without my consent, you steal from me. Spam is a theft of service.

Posted by: Nym | September 13, 2008 11:06 PM | Report abuse

If the law specified spam with commercial intent in the first place this guy would be sitting in prison where he belongs and we wouldn't be complaining. Just because spammers share the lowest possible form of human existence doesn't mean we should shoot ourselves in the foot and compromise our own rights. I think the DA is a moron for taking this to the Supreme Court. Why not demand that the Virginia legislators competently write a law that actually works. Remember this was a reverse decision. Originally the court agreed with us. If ever there was a need to fine tune a law that doesn't leave an opportunity for a criminal to hide behind the constitution, it's this one. It's pretty clear that he wasn't sending political or religious messages. To defend the law as it stands simply invites more spam.

Posted by: ggg | September 14, 2008 12:22 AM | Report abuse

It certainly it should be illegal to FORGE an email address especially for spamming or use zombie machines. Spam filtering would be a lot easier if addresses were verifiable.

Posted by: windrider | September 14, 2008 1:51 AM | Report abuse

Courts seem to be paying insufficient attention to the issues. As the old saying goes, Free speech doesn't give you a right to the printing press.

Spammers routinely hijack open relay mail servers, and use nefarious remote control viruses to enslave other peoples' computers to send their emails for them. And then they hijack the bandwidth of recipients with email address lists they've often stolen or hijacked.

Does someone who prefers their free speech go out in print form have the right to go the store and steal an Ink Jet? Because that's what's happening here - your right to speech does not extend out to being entitled to stealing the printing press.

Posted by: Fred | September 14, 2008 8:28 AM | Report abuse

I LOVE spam and junk mail. It's the only thing I read! The Pope's Blessings upon this great court!

Posted by: artificial gripe | September 14, 2008 11:46 AM | Report abuse

I'm betting that our forefathers did not have the problem of waking up in the morning to find their dwellings one foot deep in handbills...

Posted by: uh Clem | September 14, 2008 12:35 PM | Report abuse

This decision will come back to haunt the decision-makers - may they all rot in hell!

Posted by: CanAllSPAM | September 14, 2008 3:38 PM | Report abuse

The only people making money on this issue are the lawyers. The state and federal government should just stay out of telling people what they can and can’t send. This ruling was in line with common sense. Those who view this ruling as a set back are those who just like to whine and expect the government to solve their own problems.

Just delete the emails and get a life.

Posted by: Bob | September 15, 2008 11:30 AM | Report abuse

Gee, my comments are really not needed here. All my witty retorts have already been used. But here's some substance: a list of the miscreants. Of course, no hint as to their email addresses...
Hon. Leroy Rountree Hassell, Sr., Chief Justice
Hon. Barbara Milano Keenan, Justice
Hon. Lawrence L. Koontz, Jr., Justice
Hon. Cynthia D. Kinser, Justice
Hon. Donald W. Lemons, Justice
Hon. S. Bernard Goodwyn, Justice
Hon. LeRoy F. Millette, Jr., Justice
The actual opinion in question was written by former Justice G. Steven Agee, ...
OPINION BY v. Record No. 062388 JUSTICE G. STEVEN AGEE September 12, 20082

Somebody else can figure out the format of these folks email addresses and send them a love letter or two or more!

Posted by: Pete from Arlington | September 15, 2008 12:46 PM | Report abuse

The VA atty's contention is that the "right of citizens to be free from unwanted fraudulent emails is one that I believe must be made secure"

This will be a difficult thing to accomplish, because the this is predicated on two things, knowing that the email is unwanted, and knowing it is fraudulent.

So there's a bit of chicken and egg, how do you establish that the email is unwanted or fraudulent without examining it somehow? Anti-spam systems endeavour to do this automatically, using various methodologies, so it becomes a matter of questioning the accuracy of the anti-spam system that determines "unwantedness" and fraudulence.

They have to be careful, spammers are weasels, and they love chicken and eggs.

Posted by: mike | September 15, 2008 5:19 PM | Report abuse

I’m currently managing director of Mimecast, an email management solution provider, and have spent years working in this space. The decision to overturn the conviction is a disappointing setback for anti-spam efforts and has larger implications for corporate IT departments, which face a significant risk for an increased volume and complexity of spam and viruses. Corporations need to utilize robust anti-spam and anti-virus tools and ensure they measure up. Solutions must guarantee 99% of spam eliminated before it reaches you, prioritization and recognition of legitimate email, and 100% virus protection. Anything less could open the doors to an attack.

Posted by: MaryKay Roberto | September 18, 2008 4:57 PM | Report abuse

The comments to this entry are closed.

RSS Feed
Subscribe to The Post

© 2010 The Washington Post Company