It looks like Jeremy Jaynes, the first person in the United States to be convicted of a felony for spamming, is going to get a free pass, thanks to a decision handed down by the Virginia Supreme Court last week striking down Virginia's anti-spam law, Va. Code Ann. § 18.2-152.3:1, on First Amendment grounds. 

The Virginia law states that anyone who accesses a server "with the intent to falsify or forge electronic mail transmission information . . . in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider" is guilty of illegal spamming.  Under the statute, the crime can be either a misdemeanor or a felony depending on the amount of spam email that the spammer attempted to send.  (Jaynes was found guilty of the felony version in 2004, according to the Associated Press, due to his sending an average of 10 million spam emails per day.)

In a unanimous decision, the Virginia Supreme Court ruled that the state's anti-spam law necessarily infringes on the First Amendment's protection of anonymous speech.  The court wrote that "because e-mail transmission protocol requires entry of an IP address and domain name for the sender, the only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name."  But by making such a falsification illegal, the court ruled, the Virginia statute "infringes on that protected right" of anonymous speech.

The court added that the statute fails to meet strict scrutiny, pointing out that similar anti-spam statutes have been enacted by several states as well as the federal government (which passed the CAN SPAM Act in 2004), but all those statutes were narrowly tailored to target commercial spamming.  The Virginia statute, however, targeted all spamming without any evidence that the control of non-commercial spam was a compelling state interest. Thus, the court ruled, the statute was not narrowly tailored, and was unconstitutional.

Virginia's attorney general, Robert McDonnell, was none too pleased with the ruling, and stated that he plans to appeal.  The Washington Post reports that he said the court had "erroneously ruled that one has a right to deceptively enter somebody else's private property for purposes of distributing his unsolicited fraudulent e-mails. . . . We will take this issue directly to the Supreme Court of the United States." 

But The Post adds that First Amendment scholar Rodney A. Smolla said he thought that the court's decision was "sound."  "This is a case in which the spammer may have been doing things that a well-crafted law could make illegal. The problem with the Virginia law is it included e-mail communications that people have the right to make anonymously."

The court's primary example of the statute's overbreadth was noting that the online publication of the Federalist Papers, anonymously authored by Virginia's own James Madison among others, would have been a criminal act under the Virginia statute.   The Roanoke Times, in an editorial, took issue with this example, arguing that "[s]pam is not like the Federalist Papers, it is more like a letter sent COD or a text message that the cellphone company charges you 10 cents for receiving. You did not ask for it, but you will pay for it." 

But even if the Times' simile is apt, it's hard to argue with the court's determination that the statute is overbroad.  The Virginian-Pilot approved of the court's decision and chastised the state legislature for passing such a flawed law.  In its editorial, The Virginian-Pilot wrote that "It should not be that difficult to craft a law that targets shysters peddling questionable get-rich-quick schemes without entangling the Founding Fathers."  

Putting aside the rationale behind the decision though, does the Virginia court's decision mean spammers will soon be running rampant on the interwebs?  Not really.  Spam expert John Levine told the Associated Press, "I don't see it as a fatal setback for anti-spam law."  In a blog post on CircleID, a web professional community, Levine expounds further:

For everyone except Jeremy Jaynes, this decision has little or no effect. Jaynes was tried for things he did in 2003, before CAN SPAM came into effect, and even his lawyer has said that if he did them now, CAN SPAM would catch him. All of the other state laws that I've looked at are CAN SPAM compliant, which means they only affect commercial spam. So I can't say I'm thrilled that Jaynes got off (after three years in house arrest), and less thrilled if he gets to keep the $20 million he reportedly made from spamming fake FedEx refund kits and the like, but it's not the end of the world.

J.D. Falk of ReturnPath, an email service company, makes a similar point on the company's blog, noting that if Jaynes or anyone else "sent spam in, to, or through Virginia after January 1, 2004, it's a federal case under the CAN-SPAM Act."  The only real effect, Falk notes, is that Jaynes will likely get off scot free.  But otherwise, spam law really is the "[s]ame as it ever was."

(Arthur Bright is a second-year law student at the Boston University School of Law and a former CMLP Legal Intern.)