Supreme Court of Virginia Invalidates Virginia’s Anti-Spam Statute As Overbroad

Author: Jenny Kim

Jaynes was convicted in 2004 of sending large volumes of spam from his Raleigh computer to AOL addresses on the company’s Virginia-based servers, in violation of Virginia’s anti-spam statute (Virginia Code § 18.2-152.3:1). The statute prohibits the unsolicited transmission of email where the offender (1) uses a computer with the intent to falsify transmission or routing information, and (2) the email passes through a service provider’s computer network. The offense is upgraded to a felony if, as in Jaynes’ case, it meets certain volume requirements within specified time frames. Jaynes’ felony spamming conviction was affirmed twice, at the appellate court in September 2006, and at the Virginia Supreme Court in February 2008.

In Jaynes’ latest appeal, the Virginia Supreme Court reversed Jaynes’ conviction on the ground that the Virginia anti-spam statute violated the First Amendment as overly broad. According to the court, the essential flaw in the legislation was that it potentially criminalized the transmission of any “unsolicited bulk electronic mail,” without limiting the prohibition to commercial, defamatory, or obscene content—types of speech that enjoy lesser protections under the First Amendment. The court also observed that falsifying routing information was the only means effectively to mask the identity of the sender. The court thus concluded that the statute, by precluding anonymous email, and by failing to limit its application to commercial emails, reached far too much constitutionally protected speech.

In originally affirming Jaynes’ conviction, the state supreme court had found that Jaynes did not have standing to challenge the statute with an overbreadth defense. Observing that the expansive First Amendment rules of standing applied only to federal courts, the court reasoned that state courts were free to make their own rules of standing. Upon rehearing, the state supreme court recognized that its earlier reasoning was unacceptable. While a state has the discretion to broaden an individual’s First Amendment rights, it cannot limit them to the point of eradicating the constitutional minimum. The court corrected its error, allowed Jaynes overbreadth standing, and found that the Virginia statute did, in fact, unconstitutionally limit the right to anonymous speech.

The court refused to apply a limiting construction to the statute that would cure the First Amendment defect on the ground that doing so would essentially rewrite the statute “in a material and substantive way.” The court also rejected the state’s characterizing of the legislation as a trespass statute, where the First Amendment would not apply. The court refused to find that that the spam’s invasion into the private property of an ISP constituted a trespass, where trespass is defined as “the unauthorized use of or entry onto another’s property.” As the court pointed out, the anti-spam statute prohibited only the intentional falsification of the email routing information, not whether the email or its sender was authorized.

The issue of the state’s personal jurisdiction over Jaynes was the one point on which the prosecution consistently prevailed. Even though Jaynes’ conduct took place out of state, the court affirmed jurisdiction because some of the spam recipients were AOL subscribers who utilized the company’s servers in Virginia. Since the location of the AOL servers was information readily available to the public, the courts reasoned that Jaynes must have known and intended his actions to have an impact in Virginia. Jaynes countered that he had no control over the routing of the emails; an email can pass through any number of servers before reaching its destination, and his emails simply happened to pass through AOL’s. But the courts rejected this contention because a number of Jaynes’ targeted recipients—50,000 out of his database of 176 million email accounts—had email addresses that ended in “@aol.com.” Regardless of what other networks the emails might have passed through, the court found it inevitable that they eventually would end up on the AOL servers in Virginia, and Jaynes was thus liable there.