Virginia Appeals Court Affirms Over Constitutional Challenge Nation's First-Ever Felony Conviction Under a State Spam-Fraud Law

Posted by Ronald London

The intermediate-level appellate court in Virginia’s state system this week rejected constitutional and other challenges to what was the first U.S. felony conviction for spam violations, leaving defendant Jeremy Jaynes facing up to nine years in prison for sending what some estimate may have been as many as 10 million unsolicited emails a day at the height of his activities. Jaynes was convicted of violating a Crimes Against Property provision in Virginia’s Criminal Code prohibiting falsified or forged transmissions in connection with sending unsolicited bulk emails, or “UBEs.” According to prosecutors, at the time of his arrest Jaynes’ transmission of emails touting pornography and “sham” products and services, to the tune of up to $750,000 per month, made him one of the top 10 spammers worldwide.

The Virginia Court of Appeals upheld the conviction against constitutional challenges to the Virginia statute, which criminalizes sending UBEs or spam only if the sender masks its identity. The state convicted Jaynes in November 2005 for using false electronic addresses and aliases to send UBEs through AOL’s server located in its Loudon County headquarters. The appeals court denied challenges that the Virginia statute is overbroad in that it also could be used to prohibit anonymous emails, holding that the statute forbids only intentional falsification of a sender’s identity to gain access to a service providers’ network (e.g., to bypass spam filters) via the mis­representation, not genuinely anonymous speech. The court also rejected claims that the statute discriminated against anonymous or pseudonymous speech in favor of other types of speech and accordingly is content-based regulation subject to the most searching level of constitutional review. Ultimately, the court held that due to the falsification, the Virginia statute in effect proscribes no protected speech, but rather only intentional falsity, and accordingly is not overbroad or subject to invalidation under Jaynes’ First Amendment claims.

The court went on to hold the Virginia statute also does not violate the “dormant” Commerce Clause. It assigned little weight to the burden imposed on interstate commerce, i.e., that senders of UBE not intentionally falsify or forge email transmission or other routing information, and found it was easily outweighed by local benefits of protecting users and service providers from misappropriation of equipment via deception. It also upheld the drag on interstate commerce, whatever its quantum, given the reservation by Congress in the CAN-SPAM Act’s preemption provisions of state power to continue to regulate false and misleading email.

Finally, the Court rejected Jaynes’ claim that the Virginia statue is vague with respect to the first two words in the phrase “unsolicited bulk electronic mail,” the undefined phrase “electronic mail transmission information or other routing information,” and its use of the acronym “UBE” for “unsolicited bulk electronic mail.” The court refused to entertain Jaynes’ vagueness challenge as a facial matter, since such challenges must satisfy the prerequisite that the offending law or regulation chill protected speech, and as noted the court already had found false or misleading emails not to fall within that category. In denying Jaynes’ claim that the statute was vague as applied to him, the court held that the challenged words and phrases gave persons of ordinary intelligence reasonable opportunity to know what is prohibited, and do not lend themselves to arbitrary or discriminatory enforcement. Jaynes has stated his intent to appeal the intermediate court’s ruling to the Virginia’s Supreme Court.

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