Friday, September 12, 2008

Protecting Anonymized Religious Speech Overturns Nine Year Spam Sentence

Last night I invited some friends to "Justice Science Movie Night". As my readers know my appointment at the University of Alabama at Birmingham (UAB) is in both the Computer & Information Sciences and the Justice Sciences departments. I arranged a viewing of a movie that takes a look at our corrections system in the United States and poses the question, "Are we trying to reform criminals? or appease society?" In the evenings movie, the demands of a near future society to feel that criminals had been adequately punished greatly outweighed the desire to rehabilitate the wrong-doers. The movie was called "Death Race".

When I hear about court rulings like the one today in the Virginia Supreme Court, I reach the levels of frustration that temporarily make me lack admiration for the fairness of our courts.

The case was the AOL Spamming conviction against Jeremy Jaynes. Jaynes was convicted in 2004, the first case brought using the new Virginia Anti-Spam Law. He was sentenced to nine years in prison as a result of sending tens of thousands of spam messages to AOL subscribers. Listed by Spamhaus as the #8 Worst Spammer on their Register of Known Spam Operations, Jaynes, who was also known as Gaven Stubberfield has been free pending appeal this entire time.

The case focused on 55,472 spam messages sent to AOL email subscribers on three days in July of 2003. According to a December 12, 2003 New York Times story, from July 11th to August 9th of that year more than 100,000 AOL subscribers clicked the "Report as Spam" button on emails sent by Jaynes.

(Image from CNN)

Although Jaynes lawyer in the original case was later convicted of obstructing justice and laundering money for a spammer and disbarred, it seems his client will walk. Currin helped his client hide $689,000 from the IRS, according to the charges of which he was found guilty.

In September of 2006, Jaynes appeal was heard by the Court of Appeals of Virginia, where it was pleaded before Judges Haley, Bumgardner, and Fitzpatrick that his conviction should be overturned on four grounds:
(1) Virginia lacked jurisdiction over the case, as he resided and performed his actions in North Carolina.
(2) the statute violates the First Amendment
(3) the statute violates the Dormant Commerce Clause
(4) the statute is unconstitutionally vague.

The judges found that the arguments had no merit.

The appeal did not question the facts that:
On July 16 he sent 12,197 pieces of unsolicited bulk email with falsified routing and transmission information onto AOL's proprietary network.
On July 19 he sent 24,172 similar emails, and on July 26 he sent 19,104 more.

The messages advertised either a FedEx claims product, a stock picker, or a history eraser.

Jayne's home contained CDs with 176 million email addresses and 1.3 billion user names, as well as zip disks containing 107 million AOL email addresses.

In the Court of Appeals, the claims of the First Amendment were thrown out, because "Each e-mail advertised a commercial product; none contained any content that was personal, political, religious, or otherwise non-commercial." Because the nature of his complaint was "in the nature of a trespass statute", the Court of Appeals declared that Jaynes lacked the standing to raise a First Amendment challenge.

Now, the Supreme Court has found that because the law prohibits anonymous internet emails, without making exception for Freedom of Speech issues, the law is unconstitutional. While the Commonwealth argued that that portion of the law was not in play here, the Supreme Court replied "A successful facial overbreadth challenge precludes the application of the affected statute in all circumstances."

In otherwords, because the Virginia law COULD be used to make it illegal to use an anonymous identity to send political or religious speech, the law is unconstitutional, and because it is unconstitutional, all charges brought under the law are also unconstitutional.

The Court did do us the favor of citing several other State laws which do properly restrict their application to commercial settings. Laws they held out as examples include:

Arizona Revised Statutes Article 16 Commercial Electronic Mail §44-1372.01

Arkansas Code Ann. Unsolicited Commercial and Sexually Explicit Electronic Mail Prevention Act § 4-88-603
California Bus. & Prof. Code § 17538.45

Florida Statutes, Electronic Commerce, Electronic Communications § 668.603

Idaho Code, Unfair Bulk Electronic Mail Advertisement Practices, § 48-603E

Illinois Comp. Stat. tit. 815 § 511/10, Electronic Mail Act

Indiana Code § 24-5-22-7, Deceptive Commercial Electronic Mail

Kansas Stat. Ann § 50-6, 107, Commercial Electronic Mail Act

Maryland Code Ann., Commercial Law § 14-3002

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Trying a new setting. After turning on comments, I got about 20-30 comments per day that were all link spam. Sorry to require login, but the spam was too much.