Virginia Court of Appeals: Spammer’s conviction upheld
Jeremy Jaynes v. Commonwealth of Virginia 2008 WL 539744 (Va. App. February 29, 2008).
The Virginia Court of Appeals has affirmed the conviction of Jeremy Jaynes for violations of Code ยง 18.2-152.3:1 (Code), the unsolicited bulk electronic mail (e-mail) provision of the Virginia Computer Crimes Act.” Armed with stolen America Online (AOL) user information, Jaynes used, for the purpose of “pecuniary gain,” “several computers, routers and servers to send over 10,000 [unsolicited] e-mails within a 24-hour period to [AOL] subscribers on each of three separate occasion.”
Jaynes’ appeals consisted of four basic disputes: (1) that the circuit court had jurisdiction over him; (2) that the Code violates the First Amendment; (3) the “vagueness” of the Code; (4) that the Code violates the Commerce Clause of the U.S. Constitution.
(1) Jaynes claimed that he neither used a computer in Virginia (but in North Carolina) to send out the mass emails nor exercised control over their “routing” and, therefore, that he had committed no specific crime in Virginia. The Court determined that since Jaynes had selected AOL subscribers “as his email recipients,” he knew and intended that the emails would “utilize AOL servers” which are located in Virginia. Therefore he was “amenable to prosecution” in the jurisdiction of the Virginia circuit court.
(2) In response to Jaynes’ claim that the overbreadth of the Code violated the First Amendment, the court of appeals determined that because of his use of “misleading commercial speech” he did not have standing to raise such an objection. Jaynes did not claim that his “commercial speech” in sending the emails was protected, but rather that “the statute could potentially reach the protected speech of a third party, a hypothetical person” not charged with a crime. But the court decided that since Jaynes did not show that the Code could not be constitutionally applied, his particular circumstances did not warrant a facial review of the statute.
(3) In response to the “vagueness” challenge, the court of appeals determined also that, because of its application to him, Jaynes did not have standing to raise the issue. The court of appeals cited the Supreme Court case Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982):
A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.
(4) Jaynes cited the “dormant aspect” of the Commerce Clause limiting the government’s power to “unduly burden interstate commerce and thereby imped[e] free private trade in the national marketplace.” He argued that the statue is invalid because its “its practical effect is to regulate wholly extraterritorial e-mail transactions.” The court of appeals determined that there is a “legitimate public interest” in preventing “spam” email involving falsified sender identification. That commercial emails contain “true identification of the market participation” is the only burden brought by the statute. The court of appeals, therefore, found that the public interest trumped this “minimal” burden.