Virginia spam charges upheld

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The Virginia Supreme Court yesterday affirmed the country's first felony conviction for spamming, rejecting claims that a state anti-spamming law is overly broad and violates free speech.

Jeremy Jaynes was sentenced in 2004 to nine years in jail by a Loudoun County Circuit Court jury that found he violated the Virginia Anti-Spam Act, which defines spam as unsolicited bulk e-mail sent by fraudulent means.

In a 4-3 decision, the state Supreme Court dismissed Jaynes" argument that the law violates the federal Commerce Clause of the Constitution and said the First Amendment does not protect misleading commercial speech. It also upheld the jurisdiction of Loudoun, which was chosen because Jaynes' e-mails traveled through a server from Sterling-based AOL.

"This is a historic victory in the fight against online crime," Virginia Attorney General Bob McDonnell said. "Spam not only clogs e-mail inboxes and destroys productivity; it also defrauds citizens and threatens the online revolution that is so critical to Virginia's economic prosperity."

Jaynes used several computers to send 53,000 e-mails over three days in July 2003, according to authorities, easily exceeding the law's felony threshold of 10,000 a day. His operation, believed then to be the eighth-biggest spam operation in the world, reportedly raked in as much as $750,00 a month.

"Unfortunately, the state that gave birth to the First Amendment has, with this ruling, diminished that freedom for all of us," said Jaynes' attorney, Thomas Wolf. "As three justices pointed out in dissent, the majority's decision will have far-reaching consequences. The statute criminalizes sending bulk anonymous e-mail, even for the purpose of petitioning the government or promoting religion."

Writing for the majority,Justice Steven Agee said that "misleading commercial speech is entitled to no First Amendment protection on its own merits." Justice Agee said the law, which criminalizes spam sent to e-mail addresses based in states other than Virginia, has only an "incidental" effect on interstate commerce.

Jon Praed, a lawyer with Internet Law Group in Arlington, called the court's decision "groundbreaking."

"Before this case, the only spammers who had been convicted were convicted of things that were crimes without reference to their spamming activity," said Mr. Praed, whose clients include large businesses victimized by cyber criminals. "It was important to establish that spam is illegal because it's unsolicited bulk commercial e-mail — without regard to the quality of the content that you're advertising."

Mr. Wolf suggested that his client may seek relief in the U.S. Supreme Court.

"We are going to study these lengthy opinions, but I don't see giving up on these important constitutional issues," he said.