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United States: Virginia Supreme Court Upholds Felony Spamming Conviction

(Mar. 2, 2008) On February 29, 2008 the Supreme Court of Virginia upheld the felony conviction of Jeremy Jaynes on three counts of violating the unsolicited bulk e-mail ("spam") provision of the Virginia Computer Crimes Act.

Jaynes used computer systems in his home in North Carolina to send tens of thousands of unsolicited e-mail advertisements to customers of America Online, Inc. ("AOL"). Jaynes falsified the header information in the e-mails to conceal his identity from the recipients. Virginia law makes it a crime to send unsolicited bulk e-mail with such falsified routing information. Jaynes was convicted after a trial, and sentenced to nine years in prison. He appealed his conviction on several grounds.

The Supreme Court of Virginia found that Virginia had jurisdiction over Jaynes, even though he lived in, and sent the e-mails from, North Carolina, because AOL's mail servers were all in Virginia and "the location of AOL's servers was information easily accessible to the general public." The court rejected Jaynes' First Amendment "overbreadth" argument, stating that his false-header e-mails constituted misleading commercial speech and thus did not give him standing to assert First Amendment rights on behalf of theoretical third parties. The court also rejected Jaynes' "void for vagueness" and "dormant Commerce Clause" arguments as well, stating that the statute was clear, and that the effects of the law on interstate commerce would be incidental. (Jaynes v. Virginia, No. 062388 (Va. Feb. 29, 2008) available at http://www.courts.state.va.us/opinions/opnscvwp/1062388.pdf.)