Thursday, September 25, 2008

Virginia Ban on Unsolicited Bulk E-Mail Held Unconstitutional

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

The unsolicited bulk electronic mail provisions of the Virginia Computer Crimes Act were unconstitutional because the statute prohibited anonymous transmission of all bulk e-mails, including those containing political, religious, or other speech protected by the First Amendment, the Virginia Supreme Court decided.

Felony Prosecution

Criminal jurisdiction existed in Loudoun County, Virginia for felony prosecution of a North Carolina sender of unsolicited bulk electronic mail to America Online users because AOL’s e-mail servers were located in Loudoun County, the court held.

Because the use of the computer network of an e-mail service provider or its subscribers was an integral part of the crime charged—and because the use of AOL’s servers was the “immediate result” of the sender’s acts, he was amenable to prosecution in Virginia.

Overly Broad Statute

The bulk e-mail sender had standing to challenge the statute as overly broad because overbreadth was a function of substantive First Amendment law protected by the due process clause of the Fourteenth Amendment from impairment by the states, the court found. The prohibition against intentional use of false e-mail routing information was not a form of trespass excluded from First Amendment protection.

In transmitting and receiving e-mails, e-mail servers use a protocol requiring that routing information contain an Internet Protocol (IP) address and a domain name for the send and recipient of each e-mail. The only way a sender can publish an anonymous e-mail is to enter a false IP address or domain name, according to the court.

Right to Engage in Anonymous Speech

The right to engage in anonymous speech, particularly anonymous political or religious speech, was “an aspect of the freedom of speech protected by the First Amendment, the court noted. The statute was no limited to instances of commercial or fraudulent transmission of e-mail, nor was it restricted to transmission of illegal or otherwise unprotected speech, such as pornography or defamatory speech.

The statute was substantially overbroad and could not be saved by a limiting construction that would amount to a material and substantive rewrite that only the legislature could do, the court concluded.

The September 12 decision in Jaynes v. Commonwealth of Virginia appears at CCH Advertising Law Guide ¶63,096.

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