Virginia's law banning the massive distribution of junk e-mail is an unconstitutional barrier to free speech, a lawyer for a former spammer told the state's highest court Wednesday.
Jeremy Jaynes of Raleigh, N.C., was considered among the top 10 spammers in the world when he was charged in 2003 in the nation's first felony case against illegal spamming. He was convicted and sentenced to nine years in prison.
Prosecutors said Jaynes, using aliases and false Internet addresses, bombarded Web users with junk e-mails peddling sham products and services. He was charged in Virginia because the e-mails went through an AOL server in Loudoun County, where America Online is based.
Almost all 50 states have passed anti-spamming laws.
"There's absolutely no question spam can be regulated," Jaynes' lawyer, Thomas Wolf, told the Virginia Supreme Court. "The problem with Virginia's statute is that it attaches severe criminal penalties to unsolicited bulk e-mail of a noncommercial nature."
Wolf said anonymous speech is protected by the First Amendment. A person anywhere in the world sending anonymous political or religious e-mails in bulk could unwittingly break the law because some of the messages almost certainly would pass through servers in Virginia, he said.
But State Solicitor General William E. Thro said the law doesn't bar speech — it prohibits falsifying Internet routing and transmission information to electronically trespass on a privately owned computer network.
"There is no constitutional right to use the property of others to engage in speech," Thro said.
He said using unsolicited bulk e-mail to "commandeer" a privately owned computer network is akin to stealing a car to drive to a political rally.
In Jaynes' case, prosecutors presented evidence of 53,000 illegal e-mails sent over three days in July 2003. However, authorities believe Jaynes was responsible for spewing out 10 million e-mails a day in an enterprise that grossed up to $750,000 per month.
Thro said that on a typical day, about three-fourths of the e-mail sent through AOL is rejected as spam. Customers of AOL and other Internet service providers expect to be protected from spam, and all providers have filters intended to do just that, Thro said. Spammers use false information to try to circumvent the filters.
The Virginia Court of Appeals, the state's intermediate appellate court, upheld the law and affirmed Jaynes' conviction last September. In a unanimous ruling, the court said the statute "does not prevent anonymous speech ... but prohibits trespassing on private computer networks through intentional misrepresentation, an activity that merits no First Amendment protection."
Jaynes' lawyers also claim the law is unconstitutionally vague and that it impermissibly regulates activity outside Virginia — points that also were rejected by the state appeals court.
Jaynes has remained free while his case is appealed. The Supreme Court likely will issue its ruling in November.