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Virginia Supreme Court: No First Amendment Right To Spam

Spamming itself is not illegal, but an appeal to protect false message routing information may take Jeremy Jaynes' case to the U.S. Supreme Court.

The Virginia Supreme Court on Friday narrowly upheld the felony conviction of Jeremy Jaynes of Raleigh, North Carolina, for illegal spamming, rejecting his claims that falsifying message headers is protected under the First Amendment right of free speech.

As a result of the 4-to-3 vote, Jaynes will serve nine years in prison for sending millions of illegal spam messages in 2003, absent an appeal to the U.S. Supreme Court.

Spamming itself is not illegal. It is allowed under the CAN-SPAM Act of 2003. However, the law prohibits the use of false or misleading message headers and deceptive subject lines. It requires a way to opt-out, a valid postal address, and that the message is identified as an advertisement.

When police searched Jaynes' home, they found a cache of CDs containing 176 million full e-mail addresses and 107 million AOL e-mail addresses, according to the court's ruling.

Virginia prosecutors estimated Jaynes' net worth to be about $24 million. In 2004, when the initial verdict was handed down, prosecutors said Jaynes was earning $500,000 per month from spamming. Jaynes' conviction was the first felony conviction in the U.S. for illegal spamming.

Jaynes was convicted of falsifying message headers and message routing information under the Virginia Computer Crimes Act, which contains prohibitions similar to CAN-SPAM. He appealed his conviction by asserting that his activities were protected by commerce laws and the First Amendment.

The majority of the Virginia Supreme Court justices thought otherwise. They dismissed his First Amendment claim and noted that the burden placed on interstate commerce by banning false message routing information is acceptable.

"In the realm of legitimate commercial transactions, true identification of the market participant would seem to be the norm, not the transmission of e-mails with false identification," the ruling said.

However, three of justices disagreed. In her dissent, Justice Elizabeth Lacy disagreed "with the majority's conclusion that Jaynes' commercial speech was 'unprotected' because the routing information was false." Protected speech may be banned when it does not accurately inform the public about lawful activity, she said. But banning protected speech on the basis of false routing information was improper, Lacy said, because the "the routing information at issue here, while false, is not part of the commercial speech aimed at the recipient of the e-mail..."

Lacy sees the majority's decision jeopardizing the anonymous distribution of political speech.

"The current use of the Internet as the marketplace for expressing political ideas, views and positions emphasizes the need for insuring that use of this medium not be chilled by the threat of criminal prosecution," she said. "Those persons wishing to use this medium should have the same ability to express their views anonymously as did Thomas Paine during the founding of our country."

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