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Virginia Spam Case Commentary

By Christopher Harbin,
Legal Satyricon Correspondent

I detest legendary spammer Jeremy Jaynes. As the 8th largest spam operator in the world, Jaynes has made a living cluttering up people’s inboxs and pumping them for money through get-quick-rich schemes. In April 2005, Jaynes was convicted of “felony spam” in violation of Virginia’s anti spam statute and sentenced to NINE YEARS in prison.

Thankfully, the Virginia Courts eventually got it right. Jaynes appealed his conviction on First Amendment grounds arguing that Virginia’s statute is unconstitutionally overbroad. The Court of Appeals for Virgina agreed.

Over at Spam Notes, Venkat Balasubramani makes an interesting argument that Virginia’s now-unconstitutional anti-spam statute didn’t actually curb anonymous speech, but rather “just one particular means of disseminating it.”

Venkat suggests that there is a distinction between obscuring email headers and IP addresses rather than falsifying them. Venkat argues that anonymizer services simply obscure one’s true IP address – thus leaving them outside the bounds of the Virginia statute and therefore anonymous speech may not be affected. I think that’s a pretty fine distinction and one that’s not all that technologically divergent. SMTP headers are falsified by spammers in much the same way anonymizer sites “obscure” the IP’s of the clients — it’s just locally at the spammer’s network or computer.

Venkat also suggests that “anyone can create a yahoo account or register a domain name with privacy protection and email away” and that “[p]eople cannot just identify you by your email or even your IP address.”

Sure, yahoo accounts are somewhat anonymous but the attached IP records are also open to subpoena. Even the threat of litigation and the need to defend that anonymity in court is a burden that is too much to bear for one looking to engage in anonymous speech. Moreover, determining which neighborhood an IP address originated from is often achieved by a simple reverse look-up. For one engaging in religious or controversial political speech, that might be a little too revealing. Is it really “anonymous speech” if a communication can be pinned down to a specific city block?

Venkat’s strongest criticism is here: “When taken to the extreme the court’s opinion could stand for the proposition that a political speaker has the right to spam you continuously, as long as no products are sold or pitched. This sounds like a pretty absurd proposition.”

Venkat makes a good point here about the need for some legislative narrowing. It makes good sense that there should be a point where anonymous spam emails that disrupt bandwidth and businesses is not protected. However, I’m willing to tolerate a few half-baked Ponzi scheme emails from guys like Jaynes so that anonymous religious and political speech can freely flow through the series of tubes. Let’s hope legislatures find reasonable limits to volume, while still protecting anonymous transmissions so that my precious cartoon-watching bandwidth isn’t eroded by male enhancement offers.

Jon Katz weighs in here.

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