Virginia seeks return of anti-spam law

RICHMOND | Virginia’s attorney general asked the nation’s highest court Thursday to revive a state anti-spam law that was struck down by a lower court as unconstitutionally overbroad.

Virginia’s Supreme Court ruled in September that the law violates the free-speech protections of the First Amendent because it prohibits anonymously sending any type of unsolicited bulk e-mail, including political and religious messages.

Most states have anti-spam laws, and there is a federal statute, but Virginia’s is the only one that is not limited to commercial e-mails.

In asking for a reversal of the ruling, Attorney General Bob McDonnell said the state court erred in its conclusion that some “imaginary spammer” could be unfairly prosecuted for sending political or religious e-mails.

The justices “invalidated a statute on its face based on a hypothetical application that occurs very infrequently, if it occurs at all,” he wrote in his petition to the U.S. Supreme Court.

Mr. McDonnell said he expects a decison on the petition early next year.

The ruling invalidating Virginia’s law also overturned the conviction of Jeremy Jaynes, who once was considered one of the world’s most prolific spammers. Mr. Jaynes bombarded Internet users with millions of pieces of spam, all of it commercial.

His attorney, Thomas M. Wolf, said he doubts that the Supreme Court will hear the case because the lower court’s unanimous ruling was so clear cut and the statute’s constitutional infirmity could be easily cured with an amendment restricting its application to commercial spam.

“As Justice [G. Steven] Agee said in the court’s opinion, if the ‘Federalist Papers’ were written today and disseminated by e-mail, the sender would be guilty of a felony under Virginia’s anti-spam statute,” Mr. Wolf said.

The “Federalist Papers” were essays written by Alexander Hamilton, James Madison and John Jay under the pseudonym Publius urging ratification of the Constitution.

Attorneys for the state had argued that the First Amendment doesn’t apply because the Virginia law bars trespassing on privately owned e-mail servers through phony e-mail routing and transmission information. The state court rejected that characterization of the law.

If the nation’s highest court does hear the case, Mr. Wolf said, he is confident the ruling will be upheld.

In 2004, Mr. Jaynes became the first person in the country to be convicted of a felony for sending unsolicited bulk e-mail.

Authorities said Mr. Jaynes sent up to 10 million e-mails a day from his home in Raleigh, N.C. He was charged in Loudoun County, Va., because much of his spam passed through AOL servers there. He was sentenced to nine years but is currently serving time in federal prison for a securities fraud conviction unrelated to the spam case.