Constitutional Spam

Jeremy Jaynes walked out of prison yesterday.

Never heard of Jeremy Jaynes?

Chances are you've gotten email from him, especially if you have an AOL account.

Jaynes was the first convicted felony spammer. He was sent to prison for nine years by Virginia Circuit Court Judge Thomas Horne in 2004 for sending thousands of unsolicited, anonymous emails to America Online users. He claimed it was his right to do so under the 1st Amendment.

Yesterday, the Virginia Supreme Court agreed with him, and today he is a free man.

Yesterday, the Virginia's high court reversed itself and struck down a state anti-spam law, passed in 2003, declaring that the law violated Constitutional First Amendment rights to free and anonymous speech.

There is no doubt that Jaynes committed the act for which he was convicted - he sent over 10,000 emails from his home systems in a 24-hour period - in fact he did it at least times in a 30 day period - the emails were unsolicited with randomly generated blocked return addresses and fraudulent IP originators. When police raided his home, they discovered hundreds of compact disks containing over 176 million full e-mail addresses, 1.3 billion user names, and other private account information for mostly AOL subscribers. The information had been stolen from AOL by a former employer and bought by Jaynes. Jaynes was fully aware of the nature of the stolen information. Jaynes then used this information to send tens of thousands of unsolicited emails advertising a FedEx refund claims product, a Penny Stock Picker, and a Internet Browser History "Eraser" via disguised email and multiple Internet addresses.

Neither the possession of stolen information nor his subsequent use of the information is in question.

The question is whether or not Jaynes was protected under the Constitution when he choose to become a spammer.

While that Virginia Supreme Court agreed that Jaynes' actions were egregious, they ruled that he was indeed protected under the Constitution.

The problem with the Virginia law, according to the Virginia Supreme Court ruling, was that it was too broad in scope. Virginia's anti-spam law, the Virginia Computer Crimes Act Code 18 2-152.1 through 18 2-152.15, as currently written, outlaws all forms of unsolicited bulk email (providing the bulk email passes certain thresholds), not just commercial content. In other words, the act infringes on both anonymous political and religious free speech. From section [22] of the ruling,

"The IP address and domain name do not directly identify the sender, but if the IP address or domain name is acquired from a registering organization, a database search of the address or domain name can eventually lead to the contact information on file with the registration organizations. A sender’s IP address or domain name which is not registered will not prevent the transmission of the e-mail; however, the identity of the sender may not be discoverable through a database search and use of registration contact information.12

[12: In this case Jaynes used registered IP addresses, although the domain names were false.]

As shown by the record, because e-mail transmission protocol requires entry of an IP address and domain name for the sender, the only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name. Therefore, like the registration record on file in the mayor’s office identifying persons who chose to canvass private neighborhoods in Watchtower Bible & Tract Society v. Village of Stratton, 536 U.S. 150 (2002), registered IP addresses and domain names discoverable through searchable data bases and registration documents “necessarily result in a surrender of [the speaker’s] anonymity.” 536 U.S. at 166. The right to engage in anonymous speech, particularly anonymous political or religious speech, is “an aspect of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995). By prohibiting false routing information in the dissemination of e-mails, Code § 18.2-152.3:1 infringes on that protected right. The Supreme Court has characterized regulations prohibiting such anonymous speech as “a direct regulation of the content of speech." [emphasis mine]

Frankly, I think this is a load of crap. I think anonymous statements, religious, political, or otherwise are the ultimate form of cowardice. Personally, I doubt that the founding fathers intended freedom of speech to be used as a mechanism to annoy the hell out of the citizenry with anonymous junk mail, electronic or otherwise - especially considering that they themselves risked freedom, liberty, and their own lives by making political statements inciting revolution against the Crown. However, the traditional interpretation of the Constitution guarantee's the people to be anonymous if they so choose, a while I don't agree with the mindset behind it, it is the law of the land and must be upheld.

My formal legal training is restricted to use of deadly force in civilian/military applications and while I am certainly no expert on either the law in general or Virginia law in particular, it is fairly apparent to me that despite widespread condemnation, the Virginia Supreme Court is, of course, correct in its ruling. SCOTUS has repeatedly upheld the right of the people to make anonymous political and religious statements, and the Virginia law clearly violates that right as written.

However, I don't think the spirit of the Constitution guarantees anybody the right to infringe on my privacy or deluge my inbox with unsolicited electronic scams - including religious and political crap that I'm not interested in. It may be your right to speak your mind, anonymously or otherwise, but it is also my right not to have to put up with it, and when you insert your garbage into my computer so that I have to deal with it that's exactly what you're doing.

This is going to be an difficult problem to fix, it's not enough to simply change the law's wording to address only commercial bulk mailings. Jaynes' case not only points out a flaw in the law, it is a call to arms for clever and persistent spammers. See, because this was not Jaynes' first appeal, and this appeal was a major long shot requiring the Virginia Supreme Court to reverse itself - something courts are loath to do - and as such it serves as an inspiration for other spammers.

Because of the complex, convoluted, rapidly evolving and highly technical nature of electronic communications, there will almost always be a loophole for a clever and tenacious spammer to exploit. I can think of a dozen off the top of my head - declare yourself a religious organization for example, or an independent political organization, and claim your spam is fund raising in support of your beliefs - no different from Girl Scouts selling cookies online. Forgive me if I don't outline my other suggestions here, I have no intention of helping the spammers.

Virginia's Attorney general is appealing the ruling to the US Supreme Court, but I expect that Jaynes will remain a free man.

At least until Federal law is changed - and considering the level of technical acumen in Congress, I doubt that will be anytime soon.

Here's what I don't understand though, why wasn't Jaynes indicted on state charges of receiving stolen goods? He knowingly and willingly accepted proprietary information stolen from AOL. In fact, unless every one of those billions of names on his CD's lived in the state of Virginia, he's guilty of interstate receipt of stolen goods, making this a felony. The evidence has been both verified and entered into the court and I'm curious as to why Virginia didn't pursue this course of prosecution. Additionally, why was Jaynes not indicted on federal charges of violating the Privacy Act? Hell, for that matter, why wasn't AOL?

Virginia needs to fix their law, but until the US Government brings the full power of federal law to bear, the spammers will remain free and little more than inconvenienced.