Court overturns Virginia spam law, sides with free speech

Conviction against spammer Jeremy Jaynes overturned by court.

Ray Everett-Church, director of privacy and industry relations at e-mail marketing vendor Responsys and a critic of spammers, questioned the Virginia Supreme Court's decision.

"I find their application of anonymous speech protections to be overly simplistic," Everett-Church said. "Jaynes was engaged in commercial speech, not political or religious speech, and as such the constitutionality of such restrictions are supposed to be judged at a different standard."

The court suggested the Virginia law would outlaw the e-mail publication of the Federalist Papers, a series of articles advocating the ratification of the U.S. Constitution in 1787-88, were they to be first published now. Everett-Church dismissed the comparison of spam to those important historical documents.

"I get the sense that the court is suffering from a poor understanding of how anonymous speech works in the Internet age," Everett-Church said. "I find the court's attempt to compare The Federalist Papers to the likes of penis enlargement e-mails not only wrong-headed but ultimately offensive to the reasons why we have a First Amendment."

While the Supreme Court's ruling overturns Jaynes' conviction, it should have little impact nationwide, because the U.S. Congress passed its own spam law in late 2003, said Jerry Cerasale, senior vice president of government affairs for the Direct Marketing Association, a trade group representing direct marketers.

In addition, DMA members have to follow the trade group's own rules on sending commercial e-mail, Cerasale said. "A legitimate marketing entity is not going to lie in the header because they want to sell you something," he said.

The federal Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act allows Internet service providers to sue spammers and state attorneys general to sue on behalf of users.

CAN-SPAM includes a criminal penalty of up to a year in jail for sending commercial e-mail with false or misleading header information, plus criminal penalties, ranging up to five years in prison, for some common spamming practices, including hacking into someone else's computer to send spam, registering five or more e-mail accounts using false information and using those accounts to send bulk spam.

The law allows multimillion-dollar fines for some spamming activities.

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Grant Gross

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