Spammer walks as court says state antispam law is unconstitutional

Spammer walks as court says state antispam law is unconstitutional

Summary: The Supreme Court may get to decide whether an antispam law that bans emails with false routing information violates the First Amendment (yes, I misspelled "unconstitutional" in the headline; my apologies.) The Virginia Supreme Court said the conviction of super-spammer Jeremy Jaynes is unconstitutional (PDF), The Washington Post reports.

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The Supreme Court may get to decide whether an antispam law that bans emails with false routing information violates the First Amendment (yes, I misspelled "unconstitutional" in the headline; my apologies.) The Virginia Supreme Court said the conviction of super-spammer Jeremy Jaynes is unconstitutional (PDF), The Washington Post reports.

Justice G. Steven Agee, who has since moved to the U.S. Court of Appeals for the 4th Circuit, wrote the unanimous opinion for the court. "The right to engage in anonymous speech, particularly anonymous political or religious speech, is 'an aspect of the freedom of speech protected by the First Amendment,' " Agee wrote, citing a 1995 U.S. Supreme Court case.

"By prohibiting false routing information in the dissemination of e-mails," the court ruled, Virginia's anti-spam law "infringes on that protected right."

Agee noted that "were the 'Federalist Papers' just being published today via e-mail, that transmission by 'Publius' would violate the [Virginia] statute." Publius was the pen name for James Madison, Alexander Hamilton and John Jay.

The law did not distinguish between different kinds of email; it simply made it a crime to send email with falsified headers. Virginia Attorney General Robert McDonnell said the state would appeal to the U.S. Supreme Court.

ISPs were outraged.

"Horrendous," said Jon Praed of the Internet Law Group, which has represented America Online, Verizon and other Internet providers. "The idea that someone can intrude on someone else's mail server, because they might be reciting the Gettysburg Address? I guess a burglar can break into your home as long as they are reciting the Gettysburg Address."

But the decision, even if upheld by the Supreme Court, may not have far-reaching effects. Most states, and the federal CAN-SPAM law, finger only commercial emails.

Topics: Security, Collaboration

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115 comments
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  • Bad, bad decision

    That court is flat-out wrong. Spam has nothing to do with the First Amendment. No one has any "right" to put their email on any server, period. It has ZERO to do with content.
    ZDNET_guest666
    • Second that!

      I completely agree.
      The Internet was formed by voluntary peering and data exchanging. Hence the old saying, "MY server (or computer)... MY RULES!"
      AlphaSet
    • The decision appears constitutionally correct

      Anonymous speech is one of the rights that has been ruled, time and again, as protected under the First Amendment. The example that was given (Publius sending out messages - the equivalent of dropping off flyers or tucking them under windshield wipers, or even sending you snail mail) is protected as political speech. Virginia's issue is that the law was written too broadly, as if they wrote a law saying that blog posts could not be made under an assumed name.

      A quick rewrite of the law to limit it to commercial spam should fix the law, and prevent the possibility of Virginia being flooded with commercial spam.
      brendthess
      • Spam is fraud, not free speech

        Anonymity can be protected, but this has nothing to do with spam. Faking header information is outright fraud and deserves to be punished. The judges who bought into the "freedom of speech" crap need to have their identities used to commit crimes, then maybe they would get the picture. This is an idiotic outcome.
        Get-Smart
        • Fraud?

          so you believe writers who use a pen name should be guilty of some sort of violation too? That is a logical result of your position.
          slr51
          • Forging vs. Penname

            You're confusing "forging" someone else's address with "anonymizing" your own.

            When you falsify the origin of an e-mail, you are abusing the network. When you create your own anonymous address (one that doesn't contain your name or other identifying criteria) that's legit.
            AlphaSet
      • I can't agree with that

        The decision isn't constitutionally correct because there are no constitutional parallels. The highest, most fundamental purpose of law is to prevent harm to people, and the simple act of speech has never caused direct harm before. (The consequences of speech and people's reaction to it do, but that's not what I'm referring to.)

        >The example that was given (Publius sending out
        >messages - the equivalent of dropping off flyers or
        >tucking them under windshield wipers, or even
        >sending you snail mail) is protected as political
        >speech.
        In all of these cases, it is the person publishing the anonymous speech who incurs the cost of doing so, which they do of their own free will and choice. They pass out the flyers, they tuck pamphlets under your wipers, and so on. They do it themselves or they hire people to do it for them for an agreed-upon wage.

        That's not how spam works. The very act of sending an e-mail uses up network bandwidth for the recipient's ISP, which costs them money, which is passed on to the customer. The spammer himself doesn't usually incur these problems, because the spam gets sent from other people's computers, botnet zombies that distribute the load of sending so many emails out over thousands of individual points of origin. There are plenty of recorded cases of overwhelming amounts of spam crashing email servers or clogging them into uselessness. In any other context, that's known as a distributed DOS attack, and is illegal.

        Freedom of speech is protected, but there are limits. We have laws against harmful speech, such as slander and libel, not to mention the notion of "shouting fire in a crowded theatre," and these are simply considered to be harmful as a result of other people's reactions to hearing the speech. How much more important, then, to utterly eradicate speech that is directly harmful by the very act of being spoken? The court's parallels are invalid, and the First Amendment does not apply here in any way.
        masonwheeler
        • Hard to agree with your position

          There are lots of hidden charges for which the recipient pays.
          In your own country and in Canada I HAVE TO PAY TO RECEIVE MOBILE (CELL) PHONE CALLS. In many other countries, this is not the case.

          Some cell companies have an "opt out" position whereby you will inadvertently pay to receive calls from advertisers unless you take action.

          So... I cannot agree that your position is supportable unless all charges for receiving cell calls are made zero.

          Also, with flyers, etc, there is the cost of disposal that falls on the recipient.

          With advertising, hardly any advertiser advertises the true price of anything. They might advertise $2.99, but then all these other charges just seem to get added on.

          To me, that is just as "criminal" and "dishonest" as the dishonesty that you mention concerning spammers.
          Mahegan
          • Re: Hard to agree with your position

            >There are lots of hidden charges for which the
            >recipient pays. In your own country and in Canada I
            >HAVE TO PAY TO RECEIVE MOBILE (CELL) PHONE CALLS. In
            >many other countries, this is not the case.
            I'm quite aware of this. Why do you think there was so much outrage a few months back about cellphone-number databases being created and sold to call lists? It's the same principle, and ought to be dealt with the same way.

            As for the "hidden cost" of disposing of flyers or pamphlets, you just throw the thing in the nearest trash can. Have you ever heard of entire post office branches being shut down under the weight of an overwhelming volume of fliers? Nope, me neither. I wish people would stop trying to draw comparisons to physical-world scenarios to justify spam. There simply aren't any valid ones to be drawn.
            masonwheeler
        • You're missing the point

          "The decision isn't constitutionally correct because there are no constitutional parallels"

          A law that is overly broad or overly vague is itself unconstitutional, so this law could be tossed just because of that.

          But the main point is that this law doesn't apply to only the type of speech that you base your argument on--that is, speech that is "harmful" (as you put it). This law applies to ALL emails, regardless of the author, the content, the intended recipient, and the quantity of emails distributed. If the judge had upheld this law, it would mean that if you were to send a political message (or even wedding announcements) to a few friends and you changed the email header for anonymity, you would be just as guilty under the law as the spammer. The scope of the law is far too broad to be constitutional as it outlaws protected speech as well as the speech you base your argument on. Once the law is revised and limited in scope to cover only the kind of speech you base your argument on, it will be perfectly constitutional and it will be upheld in court.
          EezerGoode
      • Now about that learned Judge....

        Obviously he has a clerk that looks at the Email for hi, so he has never seen all that wonderful garbage.
        DLG_z
      • spam is not constitutional

        Your free speech rights end when it infringes upon the rights of another. You are not allowed to yell "Fire" in a crowded movie theater, nor should you be allowed to swamp servers with unsolicited emails.

        Anyone has the right to post a blog, but you do not have the right to jam that opinion down someone else's throat.
        bbrothers
        • Regardless

          The court's verdict stands until it is overturned by a higher court. Just because spam is undesirable doesn't mean that it is unconstitutional. If this spammer illegally accessed servers to send unsolicited mail then that is criminally prosecutable, but not under spam laws. The court ruled that spam in that state is covered under the First Amendment. Do you really want the government to rewrite the First Amendment or shall we find other ways to solve our problem? I chose another route, which involved filtering the mail that I want and discarding mail that I do not want. Takes time and a little thought but it's not impossible. ISPs don't want to do it because it's not profitable enough for short term goals.
          kc117mx
          • Judge is looking at it the wrong way, or

            it was simply prosecuted the wrong way. The guy could've been nailed for fraud, etc. As far as free speech and spam goes, spammers are using bandwidth and storage on networks (other peoples' property) without paying in relation to the amount used.

            I don't see why freedom of speech ever entered into the thing, and is easily shot down as a defense tactic.
            seanferd
          • Freedom of association

            Somehow I feel I have the right to decide with whom I associate, but spammers don't respect that. Why should they be able to spam/scam at will?
            anonymous
          • You misunderstood the court's holding

            "The court ruled that spam in that state is covered under the First Amendment."

            --The court did not rule that spam is covered under the First Amendment. The court ruled that the law is too broad because it outlaws protected speech. That's a huge difference.
            EezerGoode
      • the right to send spam...

        isn't a right to have it be received. it is still "My server, My rules" as another poster put it.

        Just wish you could put a filter on the old fashioned mailbox in your front yard! ;) maybe the US postal service needs to scan your mail, and post it to your secure site, then you can approve which mail gets delivered.
        Khyron
        • My Server (or Computer)... MY Rules!

          (Yeah, I was the one who quoted that earlier.)
          Just to be clear, in the case of service providers, "my server... my rules... YOUR data" (not "MY data"). That's why this "rule" isn't applicable when justifying DPI and throttling. (For those that would be interested.)
          :)
          As far as postal service goes, there's *supposed to be* a way to say no to junk mail in the US. Being Canadian, however, I have little knowledge of how that works.

          In Canada, there's a few options for saying no to junk mail as well, but, after jumping through all the necessary hoops, it still fails, and there's little we can do about it, unless we want to start a negative publicity campaign. (Too much of that coming from our political parties!)
          AlphaSet
      • ...tucking them under windshield wipers?

        Ahh, but my vehicle is [b]my[/b] property so anyone "tucking something under my windshield wiper" is [b]trespassing[/b]. "Free speech" does not mean anyone gets to come onto or use [b]my[/b] property to exercise it. The same applies to my computer, which I paid for, and my Internet connection, which I pay for so when the "free speech" advocates are willing to buy me a nice new computer and pay for my Internet access and that portion of my electric bill it uses so that my use of the Internet becomes FREE then they can have all the "free speech" they want.
        AskQuestions
    • Bad decision to use the wrong law

      The bad decision may have been to use the wrong law, i.e. they should have used one of the laws specifically aimed at commercial mail.

      These court results have significance beyond the accused, in that they set new precedents, and functionally become part of "the law" as a result.

      Judgement in this case would have to look at the effects of this precedent, e.g. may apply to you one day, if you needed to evade someone tracking your correspondence (e.g. ISP collusion, or ISP "business partners").

      Disclaimer: I Am Not A Lawyer (or *gasp* even a US citizen)
      cquirke1