Spammer’s Felony Conviction, Nine-Year Prison Sentence Upheld

The conviction of an e-mail marketer under the “anti-Spam” provisions of the Virginia Computer Crimes Act survived constitutional attacks that the statute violated the First Amendment, breached the Dormant Commerce Clause, and was unconstitutionally vague. Thus, the Virginia Court of Appeals upheld a jury conviction under the “anti-Spam” statute and a nine-year prison sentence.

The Virginia Computer Crimes Act provides that a person who intends to falsify electronic mail transmission or routing information in unsolicited bulk e-mail commits a Class 6 felony if the volume of the transmission exceeds 10,000 attempted recipients within any 24-hour period, 100,000 attempted recipients in any 30-day period, or one million recipients in any one-year period (http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-152.3C1).

On three occasions in July 2003, the marketer used computers in his home in North Carolina to send a combined 55,000 unsolicited bulk e-mails with falsified routing and transmission information to subscribers of AOL, which has servers located in Virginia. Based on this evidence, and the seizure of compact discs containing at least 176 million stolen e-mail addresses, a jury convicted the marketer of three counts of violating the “anti-Spam” statute.

On appeal, the marketer contended that the Virginia “anti-Spam” statute was overly broad in violation of the First Amendment. However, the court held that the statute did not proscribe speech; it merely proscribed intentional falsity in the massive, uncompensated use of the private property of an electronic mail service provider. The statute could not be overly broad because no protected speech fell within its scope.

Contrary to the marketer’s claim, the statue did not violate the Dormant Commerce Clause on the theory that the Act regulated transactions outside Virginia's jurisdiction. Generally, a state statute passes constitutional muster if it regulates evenhandedly to effectuate a legitimate local public interest and its effects on interstate commerce are only incidental. It was unquestionable that anti-spam laws promoted local interests. America Online, whose users received the bulk e-mails, expended significant resources in an effort to protect its private property from spammers and to shield its subscribers from spamming.

The court held that statute was not constitutionally vague. The word “unsolicited” had a practically universal definition. An e-mail is “unsolicited” if the recipient neither requested nor consented to receive such e-mails and if the sender and recipient had no preexisting business or personal relationship. A contention that “bulk”' was a vague term also failed because the law specifically stated how many attempted recipients may be solicited within particular periods of time.

The decision is Jaynes v. Commonwealth of Virginia, Court of Appeals of Virginia, Alexandria, Record No. 1054-05-4, September 5, 2006. The opinion is scheduled to appear in the October 31 report of the CCH Advertising Law Guide.