.The Court of Appeals of Virginia upheld yesterday what is believed to be the first conviction in the nation under a state anti-spamming law that makes it a felony to send unsolicited mass e-mails.
A North Carolina man was convicted in Loudoun County two years ago of illegally sending tens of thousands of e-mails to America Online customers. Prosecutors said Jeremy Jaynes flooded the servers at the Internet company's headquarters in Loudoun with bulk e-mail advertisements for computer programs and stock pickers.
Jaynes was sentenced last year to nine years in prison on three counts of violating the state's anti-spam law and was allowed to remain free on $1 million bond while his case was appealed. Thomas M. Wolf, an attorney for Jaynes, said he plans to appeal yesterday's decision.
Virginia Attorney General Robert F. McDonnell said in a statement that his office will ask the court to revoke bond and order Jaynes to begin serving his sentence. The attorney general applauded the appeals court decision, saying the three-year-old anti-spam law helps keep Internet users "safe and secure."
"Today's ruling reinforces Virginia's anti-spam act and further protects the people of the commonwealth from identity thieves and cyber criminals," McDonnell said.
Jaynes's attorneys argued in their appeal that the Loudoun court had no jurisdiction over the case because the e-mails were sent from Jaynes's home in North Carolina. The appeal also contended that the anti-spam law restrains the constitutional right of free speech protected under the First Amendment.
But the three-judge panel disagreed, ruling in an opinion written by Judge James W. Haley Jr. that circuit courts have exclusive jurisdiction over felonies committed in their areas. The anti-spam law, Haley said, "prohibits trespassing on private computer networks through intentional misrepresentation, an activity that merits no First Amendment protection."
Wolf argued that the anti-spam statute was too broad. Moreover, he said, efforts to enforce the law could snare well-intentioned citizens in other states who send out harmless e-mails under anonymous names that pass through servers in Virginia.
"You purchase an e-mail address list, alter the transmission information in the header of your e-mail to avoid retaliation, and on Easter morning send out a three-word e-mail to thousands of people: 'Christ is risen!' You have committed a felony in Virginia," Wolf said.
John Whitehead, president of the conservative Rutherford Institute, who along with the American Civil Liberties Union of Virginia filed a brief in support of Jaynes's appeal, agreed, saying yesterday's ruling would have a "chilling effect" on free speech
A "chilling effect" on free speech? I personally do not feel that filling my email box with unsolicited offers for "marital aids", Viagra, Cialis, prescription drugs, stocks, and whatever else people can think of deserves protection under free speech. Forcing pornography on people probably would not be protected; why should I be subject to graphic descriptions of what a certain pill or herbal supplement can do?
Yes, I can delete these emails unread, and do. However, isn't my time worth something also? Should I be forced to spend that much time everyday cleaning my inbox of all that spam? Coming from multiple accounts? Not to mention that it's also downloaded onto my pda, so I have to spend extra time cleaning that up as well.
"You purchase an e-mail address list, alter the transmission information in the header of your e-mail to avoid retaliation, and on Easter morning send out a three-word e-mail to thousands of people: 'Christ is risen!' You have committed a felony in Virginia," Wolf said.
In this case, you've also run the risk of antagonizing people by forcing your religious beliefs on people who may not share them. While I believe strongly in free speech, I also feel that we should be able to control whether or not we listen to it or read it. If I don't like what is on TV, or something a commentator says on the radio, I can turn it off or change the station. If I disagree with a magazine or newspaper, I can choose not to read it. I feel that spam is something I can't easily choose delivery of, short of implementing spam filters, and they're not as effective as I'd like.
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