EXTRA: Big-time spammer freed on appeal

Welcome to a special IT Blogwatch EXTRA: watching bloggers' reactions to the Virginia Supreme Court decision -- that the state's anti-spam law is unconstitutional. Does that mean Jeremy Jaynes is free man? Not to mention a prize maze...

Grant Gross gives the goss:

The Virginia Supreme Court has overturned a state antispam law and the 2004 conviction of long-time spammer Jeremy Jaynes, saying the law is an overly broad prohibition on anonymous free speech.

The Supreme Court, in a decision released Friday, said the 2003 Virginia spam law didn't distinguish between commercial e-mails and those with political messages, and thus was an overly broad prohibition on free speech protected by the First Amendment of the U.S. Constitution.

Jaynes was convicted in 2004 and sentenced to nine years in prison for sending millions of unsolicited e-mail messages a day from his home in North Carolina ... Jaynes' prison sentence was longer than those of other prolific spammers convicted in recent years.

Austin Modine explains:

The court unanimously agreed Virginia's anti-spam law is "unconstitutionally overbroad" because it bans all unsolicited bulk email with false or misleading originating addresses, both commercial and noncommercial.
...
Justice Steven Agee wrote in today's ruling that ... "were the Federalist Papers just being published today via e-mail, that transmission by PubliAus would violate the statute." "Publius" was used as a pseudonym in 1787 and 1788 by Alexander Hamilton, James Madison, and John Jay to argue for ratification of the US Constitution.
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Even if Virginia's anti-spam law is invalidated, Jaynes's commercial spam would still violate the federal CAN-SPAM Act. However, the law cannot apply to Jaynes because it was adopted after the emails in question were sent.

Abusing his position, Richi Jennings muses:

Jaynes would have us believe that spamming is protected speech under the U.S. First Amendment. The court didn't exactly say that, but concluded that the law as written was overly-broad.
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While I agree that anti-spam laws shouldn't restrict political speech, I have a couple of issues with this decision:

1. Spam is spam, whatever the content; I'd hate this to be seen as a license for nut-jobs to fill my inbox with political rants.
2. Doesn't the U.S. constitution already make it clear that commercial speech isn't unprotected?

As I noted back in March, it was worrying that the previous decision was split 4-to-3. Again, I say I find it really hard to believe that the American founding fathers intended my inbox be full of spam..

But Declan McCullagh disagrees:

This is a remarkable decision. But a close reading of the Virginia statute shows that it is the right one.
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What's notable about this law, and what made it vulnerable to First Amendment challenge, are two characteristics. The first is that it applies to the falsification of e-mail information, which could sweep in both spammers and, say, someone using a pen name or pseudonym ... The second characteristic is that the law regulates both commercial and noncommercial e-mail, meaning that political speech would be covered as well.
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When tech-impaired politicos devise measures to imprison spammers (a worthy goal, that), those laws must not go too far and sweep in legitimate activities too.
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It's not clear what happens next. Virginia could appeal. Companies that had their servers clogged, such as AOL, could sue. Other state prosecutors may be interested in targeting Jaynes.

Chip Rosenthal observes:

The anti-spam community is responding more with a sigh than outrage. There is a general belief that the Virginia law was not as well written as might be desired, which made it susceptible to this sort of challenge.

There is, however, concern that the court confused "anonymous transmission" with "fraudulent transmission". You may have a right to speak anonymously, but you shouldn't have a right to use fraudulent means to obscure your identity, especially if it involves the use of innocent third parties.
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I am, of course, disappointed that our laws continue to favor spammers and bulk emailers and not Internet users and network owners.

Watch out for that beer keg, Steve Lynch:

Can someone explain to me how the Virginia State Supreme Court can declare its anti-spam law unconstitutional? I mean, I read what they are saying and I just don’t get it. How does anyone have the right to spam me when my e-mail is a private service I pay for? How does the spammer’s rights trump my rights?

This Anonymous Coward makes a timely political point:

Other laws are still valid. It is illegal to sell prescription drug without a prescription. Its also illegal to offer drugs to children in most states. Everyone here needs to call their country District attorney and ask them what they are doing about peddling drugs over the internet.

It almost election time and some of them are trying to get elected as a state DA so now is the time to get on their case.

Brian Krebs plays a professional journalist, IRL:

Jaynes, who has been under house arrest in Loudoun since his conviction in 2004, could not be immediately reached for comment.

And finally...

• 37maze: First to solve it saves $50 [Too late -Ed.]

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Richi Jennings is an independent analyst/adviser/consultant, specializing in blogging, email, and spam. A 22 year, cross-functional IT veteran, he is also an analyst at Ferris Research. You can follow him on Twitter, pretend to be Richi's friend on Facebook, or just use boring old email: blogwatch@richi.co.uk.

Previously in IT Blogwatch:

• Linux == MacOS with Ubuntu $$$?
• Will LHC compute grid think deeply and then say, "42"?
• Patch Tuesday patches eight critical vulns.