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01 Mar 2008
Way back in 2004 the country's first criminal spam case, Commonwealth of Virginia v. Jaynes, convicted large scale spammer Jeremy Jaynes under the Virginia anti-spam law, and sentenced him to nine years in jail. I was the Commonwealth's technical expert and wrote about my experience. Since then he's been working his way through the appeals process, losing at each stage. Today the Virginia Supreme Court handed down its decision. They upheld the conviction, but only by a single vote, 4-3.
The court disposed easily of three of the grounds for appeal, deciding that Virginia did indeed have jurisdiction, that the law was not excessively vague, and that it did not violate the dormant Commerce clause. The three dissenters agreed with all that.
The difficult issue was his argument that the Virginia spam law was overbroad under the First Amendment. In nearly every situation, if you're appealing a court ruling you only have standing to appeal based on the way the law was applied to you, but for the First Amendment, there's a special rule that says (as paraphrased by this non-lawyer) you can have standing to appeal on the basis that even though the law applies reasonably to you, it would also apply to someone else with a different set of facts who hadn't done anything wrong, or at least not as wrong as you, and is therefore an impermissible burden on speech. In such cases, the whole law gets thrown out. So the first question is whether Jaynes has standing to appeal, and if he does, then is the law indeed overbroad.
At this point, we descend into a twisty maze of legal arcana. The US Supreme Court has said (according to the Virginia Supreme Court) that the Federal overbreadth standing rules only apply in Federal court, and each state gets to decide its own overbreadth rules. So the Va. court surveyed its prior decisions, and decided that in Virginia, there's no overbreadth appeal for commercial speech such as Jaynes'. The precedents are tangled since at least one case, about ads for abortion services, was overturned at the Federal level while the Va. court was deciding another case used as precedent.
Further tangling the situation, the Virginia law outlaws false header or routing info in any unsolicited bulk mail, not just commercial mail, but the Federal CAN SPAM law limits its application to commercial mail. The court was clearly aware of this interaction, although neither the decision nor the dissent called it out. The dissenters said there's a long tradition to protect anonymous speech which fake headers enable, the Virginia law as written would apply to political and other non-commercial speech, and anyway, although Jaynes' headers were false, the body of the spam wasn't. Hence Jaynes has standing to appeal, and they conclude that the Virginia law is overbroad. They argue that as a legal principle, courts can't rewrite laws to limit them to the Constitutional bits, although they don't address whether CAN SPAM did that, as the majority appear to think that it did.
I don't understand the implications of all these legal interactions, and I get the impression that most lawyers and many judges in trial courts don't either. Jaynes will presumably appeal this to the US Supreme Court, since it's his only hope of avoiding five more years in jail, although it's anyone's guess whether they'd take it. Some speculation points out that the Court would like to reduce the limitations on commercial speech from the current Central Hudson standard, but on the other hand they would probably rather not further restrict the scope of state courts. So I hope that before another Virginia case comes to court, the Virginia legislature amends their spam law to limit it to commercial speech, thereby bringing it in line with CAN SPAM and addressing the Va. dissenters' main argument, and this very drawn out case comes to an end.
Note: In this case I testified as a technical expert, not as a legal expert, although of course that doesn't keep me from pontificating about legal theories here.
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