Convicted Spammer Claims Anti-Spam Law Is Unconstitutional

from the well,-he-would-say-that,-wouldn't-he dept

Thu, Sep 13th 2007 2:44am — Mike Masnick

A few years ago, the state of Virginia convicted a notorious spammer under its state anti-spam laws, and sentenced him to nine years in prison. The spammer, Jeremy Jaynes has been appealing the decision ever since, without much luck. Last year, an appeals court upheld the conviction and noted that a nine year sentence didn't seem excessive. However, it appears Jaynes is now trying a totally different route to fighting the conviction: claiming that Virginia's anti-spam law is unconstitutional. The idea is that it violates first amendment free speech rights by banning even spam that's non-commercial in nature. The state, however, is responding that the law doesn't ban any kind of speech at all -- but it does ban falsifying information in order to trespass on others' systems for the sake of advertising. There may actually be a fairly fine line that's worth distinguishing here between banning the specific kind of speech and whether or not the "speaker" is falsifying information in order to get across that speech. It seems unlikely that the courts will rule against the anti-spam law, but if it does it would be interesting to see if spammers in other states follow suit.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: constitution, jeremy jaynes, punishment, spam, spam laws, virginia

36 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

TX CHL Instructor (profile), 13 Sep 2007 @ 3:49am

Right to free speech...
...does not include the right to crap in my inbox. Or paint graffiti on my house (for the same reason).

Lying about who you are in order to get into my house is criminal trespass. So is lying about who you are in order to crap in my inbox.
[ link to this | view in thread ]
Abriel McPierce, 13 Sep 2007 @ 4:13am

Right to bear arms as well...
... but that doesn't mean that we can bear them in public! We have rights, but we have laws that keep people from abusing those rights.

Free speech is something that's highly protected (and it should be) but in addition to yelling "fire" in a theater, or telling someone you're going to kill them, spamming should also not be done.
[ link to this | view in thread ]
TopDog, 13 Sep 2007 @ 4:14am

End of Story
IANAL, but it seems to me the Commonwealth of Virginia and poster TX CHL have it nailed.

The bastard lied to obtain entry, and that's what CAN SPAMM is all about.
[ link to this | view in thread ]
SteelBeach, 13 Sep 2007 @ 4:23am

Excellent...
Too bad they can't bust the rest of them too.

All the Herbal Viagra ads from out of country "pharmacies" are annoying.

However, I worry about it applying to all the times I lied to gain entry...even though I did call her back the next day....
[ link to this | view in thread ]
ReallyEvilCanine, 13 Sep 2007 @ 4:46am

Clarity
Luckily, "> Virginia's anti-spam laws are very clear and specific:

§ 18.2-152.3:1. Transmission of unsolicited bulk electronic mail; penalty.

A. Any person who:

1. Uses a computer or computer network with the intent to falsify or forge electronic mail 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;
...
B. A person is guilty of a Class 6 felony if he commits a violation of subsection A and [volume exceeds 10K attempted recipients inside 24 hrs, 100K inside 30 days or 1M inside a year OR revenue from any single transmission exceeds $1K or ALL transmissions to any single service provider generate >$50K]

The law makes no distinction whatsoever about the content. It describes only the methods and actions which are considered illegal, on very firm meatspace legal grounds (criminal trespass, fraud, theft of services). In short, he's fucked, but does he really have anything better to do for the next nine years?
[ link to this | view in thread ]
Anonymous Coward, 13 Sep 2007 @ 5:44am

9 YEARS? THEY WENT EASY ON HIM
LOOK, IT MAY SEEM EXCESSIVE TO SOME BUT IF YOU TAKE A LOOK AT THE BILLIONS OF DOLLARS IN LOST REVENUE AND REPAIR COSTS, THIS GUY GOT OFF EASY. I WOULD HAVE GIVEN HIM LIFE
[ link to this | view in thread ]
Alexander Graham Bell, 13 Sep 2007 @ 6:30am

A More Suitable Punishment ...
His penalty should be that he has to write the law in pen ... one hundred million times. An a propos penalty.
[ link to this | view in thread ]
Cory, 13 Sep 2007 @ 6:32am

Except as I've always seen it, freedom of speech protects the content of the speech, not the form of delivery. Which means he can say everything he did in the spam, so long as it wasn't delivered as it was.
[ link to this | view in thread ]
RandomThoughts, 13 Sep 2007 @ 6:52am

It is against the law to send someone unsolicited business email (I know, there are provisions.) Should it also be against the law to use someone's unsecured WiFi?
[ link to this | view in thread ]
Anonymous Coward, 13 Sep 2007 @ 7:06am

I personally do think that 9 years is a bit excessive, at least for a first offense. Granted, I don't know all the details, but I don't generally like zero-tolerance type policies, because they never allow for the consideration of special circumstances, which almost always exist. Of course that depends on the nature of the crime too. Obviously anything that harms human beings is much more serious and requires more severe punishment, but that is not the case here.

I would think a year, maybe two, would be adequate for a first conviction. Then if he continues his activities and gets caught again, then 10+ years would not, IMO, be out of line. I hate spam as much as the next guy, but I also believe in not letting flared tempers get in the way of rational judgment.

And for the record, I do think it would be really funny to make him write out that law by hand a million times. That would certainly burn it into his brain forever.
[ link to this | view in thread ]
Casper, 13 Sep 2007 @ 7:25am

Re:
I personally do think that 9 years is a bit excessive, at least for a first offense. Granted, I don't know all the details, but I don't generally like zero-tolerance type policies, because they never allow for the consideration of special circumstances, which almost always exist.

What special circumstances can surround unsolicited emailing of thousands of people? That isn't a "whoops I hit the send button 100,000 extra times" kind of thing. He deliberately violated the legal statute that makes sending unsolicited email illegal. It would be a different story if everyone on his mailing list had signed up (like a news letter), but that is not the case. He simply farmed/bought emails for the purpose of spamming. It seems pretty clear cut to me.

He should feel fortunate I didn't write the law... otherwise he would be off to the gallows.
[ link to this | view in thread ]
RandomThoughts, 13 Sep 2007 @ 7:35am

The guy was made an example of. You never want to go into court with the the possibility of having your case be an example to others.

In perspective, he sent people emails. Guys beat the crap out of their wife or kids or others and don't get 9 years.
[ link to this | view in thread ]
Anonymous Coward, 13 Sep 2007 @ 7:59am

On a similar line of reasoning, consider the punishment for tampering with snail mail. That is a shining example of, on the surface, excessive punishment. But it is there for a reason. Imagine if you got a slap on the wrist for destroying someone else's mail. A fine perhaps. Violations would be rampant and the mail system would have fallen apart.

Severe punishments had to be instituted. Now... people wouldnt even consider messing with someone's mail. I have known of people who receive someone else's mail and dont know what to do with it. "Should I just throw it away!?!"

The mail system is completely reliable. The same rules have been pushed forward to email. Although there is a lot of gray area involved, mostly due to the fact that most legislators are "technologically challenged". Without strict rules and harsh punishments, the risk/reward thought process is too simple. High potential profit + low risk of punishment = "LETS SEND SOME SPAM!!!" Add some stronger punishments (such as upwards of a decade in prison) and it isnt such a simple decision anymore. You have to make a choice somewhere. Either learn to love your spam, or accept the fact that examples must be made. You cant have it both ways.
[ link to this | view in thread ]
Brian, 13 Sep 2007 @ 8:28am

Like the old fax law?
This seems to me like a natural extension of the old law prohibiting unsolicited faxes. Unfortunately now it's easier to obfuscate the sender information.

I'm glad the guys in jail. I pay for an email service and protect it as much as humanly possible and I hate that it's overrun with crap.
[ link to this | view in thread ]
Charles Griswold, 13 Sep 2007 @ 9:48am

Re: Right to bear arms as well...
Right to bear arms as well ... but that doesn't mean that we can bear them in public!
Actually, it does. When the Constitution says that "the right of the people to keep and bear arms shall not be infringed", it means exactly that. Laws against bearing arms in public infringe on our right to bear arms. If it is really necessary to curtail our Constitutionally guaranteed rights, the correct way to do it is through Constitutional amendments, not through laws that violate the Constitution.
[ link to this | view in thread ]
Tony Gryniewicz, 13 Sep 2007 @ 10:07am

Prison Terms
We should have an Island, like midway in the middle of the pacific ocean, where we send these guys, with hackers too and ID theft, that has no electronics, no internet, and no way of getting on to our computers for life. These guys are a-holes, they abuse technology and they dont deserve to use it ever again.
[ link to this | view in thread ]
VoicesInMyHead, 13 Sep 2007 @ 10:23am

Re: Re: Right to bear arms as well...
Agreed!
And here in Arizona - you CAN bear firearms in public! and with a CCW (Concealed Weapons Permit), you can carry them in public... in private. Wow, that sounds weird - now, where did I put that thesaurus...
[ link to this | view in thread ]
Fear-filled Fool, 13 Sep 2007 @ 10:52am

Re: 9 YEARS? THEY WENT EASY ON HIM
We need to kill (at least) a few of them (i am not being facetious).

I can see nothing useful in keeping spammers alive and using state monies to do it.

Spammers are, by definition, dishonest theives. They will, in all likelihood, never do anything to "add to the fabric of humanity" - and so, should not be tolerated at any level.

Life improsonment ought to be reserved for bad folks with at least a few good intentions and skill that can be used "for good instead of evil".

I say "DEATH TO ALL SPAMMERS". They are entirely useless and only contribute to "global warming". But that's another tirade.
[ link to this | view in thread ]
Overcast, 13 Sep 2007 @ 11:24am

Free Speech = Putting up a Web page with whatever you want on it.

Free Speech != Sending me garbage I never asked for.

Look - Free speech is like putting up a billboard with a statement. Free speech is not coming to my house and cramming 150 letter in my mail box. That's my property you are on pal. And it's my inbox they are filling with junk.
[ link to this | view in thread ]
Jeff J, 13 Sep 2007 @ 11:35am

Re: Right to bear arms as well... (rabbit trail)
You'd better check your facts. In most states I've been in, it's completely legal to carry a firearm in public. You just must not have it concealed unless you carry a conceal permit. Cities may have laws against such things but, as far as I know there are no states with laws banning unconcealed carry.
[ link to this | view in thread ]
Anonymous Coward, 13 Sep 2007 @ 11:46am

Re:
No, or else I wouldn't be able to post right now. Shh...
[ link to this | view in thread ]
Anonymous Coward, 13 Sep 2007 @ 11:49am

Re:
It's not YOUR inbox, unless you own the email server that you use. If you are using a free email service, they can terminate your account right now and you couldn't do anything about it.
[ link to this | view in thread ]
Anonymous Coward, 13 Sep 2007 @ 11:50am

I don't know about you guys, but with gmail, I rarely ever see spam in my inbox. But then again, I'm not an inbred monkey with a keyboard either.
[ link to this | view in thread ]
John (profile), 13 Sep 2007 @ 1:15pm

Two points
Two points to consider:

1) What is a "reasonable" punishment?
I don't know how many e-mails he send out, but let's assume it was "only" 10 million.
What is the bandwidth cost to transmit these messages?
Let's also assume that every one of these messages were delivered. Let's also assume that it took 5 seconds for a person to read and delete the message. This means that it took people 50 million seconds to delete the message... or over 138,888 hours to delete the messages.

Now let's assume that the people who receive these messages make an average of $10 an hour: some make more, some make less.
So, by these basic calculations, it cost people $1,388,880.00 to delete the messages he sent.

And, of course, this doesn't count the cost of damage done to people when they clicked on his spam: did they get spyware, did they get a virus, did they lose their money in a stock scam, did they lose their money to a fake pharmacy, and so on.

2) The second point is that we shouldn't feel too bad for this guy. He probably won't spend all nine years in jail and he'll probably get out early for "good behavior" (or some such).

I would be willing to bet that, after he's released from prison, he takes a job as a "consultant" for anti-spam companies and makes a high 6-digit salary.
[ link to this | view in thread ]
Anonymous Coward, 13 Sep 2007 @ 3:02pm

I would say at least 3/4 of the spam messages weren't even read. To assume 100% were read is just plain ignorant.
[ link to this | view in thread ]
CHL TX (profile), 13 Sep 2007 @ 6:22pm

(OT) Re: Re: Right to bear arms as well... (rabbit
There are several states that forbid open carry, and a few that make ownership of a gun (except by police and politicians) illegal. The states that have repealed the second amendment also have the highest per capita gun crime rates.

Here in Texas, since I am licensed, I can carry my handgun concealed, but not openly. In neighboring Louisiana, I can carry either openly or concealed.
[ link to this | view in thread ]
RandomThoughts, 13 Sep 2007 @ 6:37pm

Re: Two points
Do you also provide loss statistics for the RIAA?
[ link to this | view in thread ]
Fascinatin, 14 Sep 2007 @ 3:55am

lesser of two evils
There is no essential difference between 'spam' delivered by email and 'junk mail' delivered by the USPS.

Yet the former is punishable by 9 years in jail while the latter is protected by law and if you interfere with its delivery you can go to a federal pen!

If you wanted to talk about actual costs to the public involved, most people (with intelligence greater than that of a grape) quickly learn to spot spam and simply delete it without ever even opening it, let alone taking time to read it first. Junk Mail, on the other hand must be physically disposed of and, even if that only means sorting it and carrying it to the nearest trash can, it requires more time and effort than getting rid of spam does. Some towns (mine) are now even demanding that junk mail be treated as recyclable material, thereby requiring even greater amounts of time and effort to get rid of it. At least I can be fairly confident that I will never have to recycle spam!

What justification is there for protecting snail mail spam by federal law while vilifying email spam that is more easily and economically dealt with?
[ link to this | view in thread ]
ITFool, 14 Sep 2007 @ 6:24am

@28

"There is no essential difference between 'spam' delivered by email and 'junk mail' delivered by the USPS."

Sure there is, for one the cost of delivering by USPS is borne 100 percent by the sender. That is not true of spam. At least half of the cost is borne by the recipient, without his consent.

Spam is theft.
[ link to this | view in thread ]
Fascinatin, 14 Sep 2007 @ 12:29pm

Re:
"the cost of delivering by USPS is borne 100 percent by the sender"

Primarily so... and the cost of delivering spam is also born by the sender.

My whole point (which you apparently missed) was that the cost of disposing of spam is what is so bitterly complained of and that the cost of disposing of snail mail spam is considerably greater than that of disposing of email spam.

Saying "spam is theft" may sound nice and dramatic but that doesn't make it so - and the 'theft' of my time and materials to dispose of junk mail can be as easily called the same thing.

Let's face it: most of the whining about spam is just that. Any decent email system provides quite adequate spam filters and if it is really bothering you, you can easily find all the additional protection from the evilll stuff online - and often for free!
[ link to this | view in thread ]
RandomThoughts, 14 Sep 2007 @ 1:12pm

Spam is theft? Just like copyright voilations is theft?

I would rather receive spam than junk mail, I have to carry junk mail to the curb on Monday, spam I just hit the delete key.
[ link to this | view in thread ]
ITFool, 14 Sep 2007 @ 1:22pm

Re: Re:
"Any decent email system provides quite adequate spam"

Exactly my point. Those systems cost money, they are not included free with email servers, nor is the equipment that they run on.

I run the network for a public school. We have about 3K in software and equipment to stop the spam, which constitutes about 94 percent of our incoming email. While that is not a big number that is 3K less that is being spent in the classroom.

That most certainly is theft. Spammers stealing money from little kids.

"My whole point (which you apparently missed) was that the cost of disposing of spam"

My point (which you apparently missed) is that delivery of the spam costs the recipient money and time. I said nothing about disposing of it. But since you want to go there, the time the teacher spends deleting junk mail is time she is not teaching your child.

More theft.
[ link to this | view in thread ]
RandomThoughts, 14 Sep 2007 @ 2:16pm

Kill Spam. Do it for the children? Is this congress?
[ link to this | view in thread ]
meccarose, 14 Sep 2007 @ 6:29pm

Re: Right to free speech...
Yeah!!!!!! You said it!!! I totally AGREE!!!!
[ link to this | view in thread ]
sign in china, 10 Mar 2008 @ 1:40am

good! greate!
[ link to this | view in thread ]
tamac, 23 Apr 2008 @ 5:00pm

USPS versus SPAM
The biggest difference in the law allowing the USPS to de;iver junk mail to you house and email spam being illegal is that the government makes money off the first and not the second. That is why junk snail mail is legal.
[ link to this | view in thread ]