Yesterday, the Virginia Court of Appeals affirmed the conviction of Jeremy Jaynes of three counts of violating Virginia Code section 18.2-152.3:1, the unsolicited bulk electronic mail provisions of the Virginia Computer Crimes Act (the VCAA). Jaynes is the first person in the nation to be convicted of a felony for illegal spamming and was sentenced by a jury to nine years in prison.
At trial in Loudoun County, Virginia, prosecutors demonstrated that Jaynes had used computers in his home in North Carolina to send over ten thousand unsolicited e-mails, on each of three days, to AOL subscribers. Among the evidence found in Jaynes’ home and produced at trial were digital media containing 283 million e-mail addresses and the stolen personal and private account information for millions of AOL users. Jaynes was convicted under the VCAA, which prohibits the use of
"a computer or computer network with the intent to falsify or forge electronic transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers."
On appeal, Jaynes argued that: (1) the trial court lacked subject matter jurisdiction over his case; (2) the relevant provisions of the VCCA violate the First Amendment to the United States Constitution; (3) the relevant provisions of the VCCA violate the Dormant Commerce Clause; and (4) the relevant provisions of the VCCA are unconstitutionally vague. The court ruled against Jaynes on each issue presented by his appeal.
Subject Matter Jurisdiction
Because his e-mails were sent from his home in North Carolina and he had no control over the path by which those e-mails reached the recipients, Jaynes argued that the Virginia trial court had no jurisdiction to convict him of a crime. The Virginia Court of Appeals noted that
"[a]ll e-mails in question in this case were addressed to AOL users, meaning that to arrive at the destination intended by appellant, the messages necessarily had to pass through AOL’s e-mail servers, all of which are in the jurisdiction of the trial court . . . Thus, while the e-mails could have taken any number of pathways to reach the intended recipients, each pathway ended at AOL’s servers [in Loudoun County, Virginia]."
The court further opined that, "[Jaynes] cannot challenge that he purposely intended his e-mails to pass through AOL’s servers because the address of every intended recipient in the case ends in ‘@aol.com’" Consequently, the appellate court held that the trial court had jurisdiction over the matter.
The First Amendment
Jaynes argued that the VCCA is unconstitutionally invalid, on its face, because its language prohibits anonymous speech of a non-commercial nature, which is protected by the First Amendment to the United States Constitution. Though the Virginia Court of Appeals noted that "the right to speak anonymously has a long and respected history in First Amendment jurisprudence," it held that Jaynes’ First Amendment argument was meritless because the "VCCA proscribes no speech." Instead, the court held that the VCCA prohibits unauthorized electronic mail as a trespass to a computer network, saying that
"the statute proscribes intentional falsity as a machination to make massive, uncompensated use of the private property of an [Internet Service Provider] . . . [T]he statute cannot be overbroad because no protected speech whatsoever falls within its purview."
The Dormant Commerce Clause
Jaynes also argued that the VCCA violates the Dormant Commerce Clause of the United States Constitution because it places an impermissible burden on interstate commerce. In addressing this issue, the court first outlined the proper standard:
"Generally, ‘[a] state statute must be upheld if it ‘regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental . . . unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.’ Edgar v. Mite Corp., 457 U.S. 624, 640 (1982) (quoting Pike v. Bruce Church, Inc., 297 U.S. 137, 142 (1970))."
The court opined that the VCCA, and anti-spam laws generally, produce unquestionable local benefits and that the VCCA presented no significant burden on interstate commerce. ("[A]s the trial court noted, the only burden on any sender is to present truthful transmission and routing information."). The court further noted that Congress, in enacting the CAN-SPAM Act of 2003, "expressly accorded the States the right to regulate false and misleading e-mail transmissions. 15 U.S.C. 7707(b)(1)" and concluded that
"[i]f Congress itself was satisfied that supplementary state legislation would impose no undue burden on interstate commerce, this Court can hardly presume to tell Congress it is wrong."
Accordingly, the Virginia Court of Appeals rejected Haynes’ argument and held that the VCCA did not violate the Dormant Commerce Clause of the United States Constitution.
Finally, Jaynes argued that the VCCA is unconstitutionally vague in instances in which words or phrases used in the statute are either undefined ("unsolicited," "bulk," and "electronic mail transmission information or other routing information") or otherwise vague (the acronym "UBE"). The appellate court held that, as applied to Jaynes’ actions, the VCCA is not unconstitutionally vague in that it gives a person of "ordinary intelligence a reasonable opportunity to know" what conduct is prohibited; the plain meaning of the undefined terms, when the statute is read as a whole, are sufficiently precise to have apprised Jaynes that his conduct constituted a criminal offense.
Legally, the opinion of the Virginia Court of Appeals is not surprising but the case is newsworthy because it is the first of its kind. Time will tell as to whether the nine-year prison sentence affirmed by the appellate court will deter other potential spammers.
For the full text of the Virginia Court of Appeals opinion, see Jaynes v. Commonwealth, --- S.E.2d ---, 2006 WL 2527678 (Va. App. 2006).
Update (9/7/2006): For some interesting spam facts detailed in the Jaynes decision, see AOL Sees Over One Billion Pieces of Spam Every Day (and Other Fun Facts).
Update (9/21/2006): For Ethan Ackerman's take on the case, see Nails, Coffins, Spam, and the Dormant Commerce Clause? on Eric Goldman's Technology & Marketing Law Blog.