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Virginia Spam

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Jeremy Jaynes is a spammer. He was convicted of violating Virginia's anti-spam law by spamming AOL subscribers (AOL is in Virginia) and was sentenced to a total of nine years in the slam for three slices of spam.

In 2006, the Virginia Court of Appeals rejected Jaynes's constitutional attack on the statute and affirmed. Last February, the Virginia Supreme Court affirmed on the patently erroneous ground that Jaynes did not have standing to attack the statute as overbroad due to its application to noncommercial spammers, given that his spam was commercial. The whole point of the "overbreadth" doctrine is to let people challenge laws as applied to others, but the requirement of substantial overbreadth means that such attacks should fail when the invalid applications are minor. Realizing its error, the Virginia Supreme Court granted rehearing and proceeded to err even more badly in the opposite direction. The AG filed a certiorari petition in Virginia v. Jaynes, No. 08-765, and the amicus briefs supporting certiorari are in the mail.
The opinion below, certiorari petition, and amicus briefs are here. From the petition:

Virginia Code § 18.2-152.3:1(A) provides, in relevant part, that any person is guilty of a crime if he:
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.

The Virginia Supreme Court declared that the statute was overbroad and therefore unenforceable against anyone -- even persons whose conduct clearly violates the statute and whose conduct is clearly within the power of the state to prohibit. This drastic remedy was deemed necessary under U.S. Supreme Court precedents.

Applying [the overbreadth] inquiry under [United States v.] Williams in this case is relatively straightforward as Code § 18.2-152.3:1 would prohibit all bulk e-mail containing anonymous political, religious, or other expressive speech. For example, were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute.
How is this wrong? The hard part is just knowing where to start.

Given that you are on the Internet (how else would you be reading this?), you have almost recently received spam.  Probably lots of it.  Maybe truckloads of it.  Of all the spam emails you have received from the first day you went online, how many had any goal other than selling you something or scamming you?  Probably a single-digit number.  Quite possibly a round single-digit number. Striking down this statute because it would apply to political or religious spam is like striking down a statute on horses because it would also apply to unicorns.

Virginia's certiorari petition and the brief of the amici states focus on the Virginia Supreme Court's overbroad application of the overbreadth doctrine.

But wait, there's more. Where did Virginia Supreme get the crackpot notion that prohibiting forgery of headers constitutes prohibition of anonymous speech via email?  Here is an excerpt from our brief:

If the sender of an e-mail has a private domain, the owner of that domain is typically discoverable through the registrar, as the Virginia Supreme Court says. See App. to Pet. for Cert. 22.2 However, transmission from one's own domain is not the only, or even the primary, way to send noncommercial e-mail. Most individuals do not send personal e-mail from their own domain. The "little people" the Watchtower Court was concerned about, see 536 U. S., at 163, typically have an account with a service provider who owns the domain. Service providers run the spectrum from huge operations with millions of subscribers, such as America Online, Inc. (AOL), to tiny operations, some run by a sole proprietor.

To send an e-mail anonymously requires nothing more than opening an account with a provider who agrees to keep the customer's identity confidential. For example, Alexander Hamilton may open an account with Small ISP, Inc., owner of the smallisp.net domain. The Federalist Papers then go out with the IP address for smallisp.net, and the sender is identified as publius@smallisp.net. The fact that Publius is Hamilton is kept confidential by Small ISP, Inc. Unlike the situation in Watchtower, 536 U. S., at 166, the identity of the speaker is not in any government file, and it is not open for inspection by the public. There is, of course, a risk of disclosure by infidelity of the provider, theft of the information, or legal process such as a search warrant, but those risks also exist in more traditional forms of publication of anonymous works.
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2. We say "typically" because some registrars are now offering private registration that protects the contact information from disclosure. See Network Solutions, Inc., Private Domain Registration, http://www.networksolutions.com/domain-nameregistration/private.jsp (last visited Dec. 29, 2008).

This point is also made in the brief of the ISPs (who also briefed the overbreadth point) and the brief of American Center for Law and Justice.

Jaynes's brief in opposition is due February 13. Presumably he will send in the usual 40 copies and not 100,000,000.

Also noted in our brief are an explanation of how this contagion came to be called "spam" and a link to the classic skit itself, posted on -- you guessed it -- AOL.



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