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U.S. spammer will serve jail time


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March 4, 2008

On Feb. 29, a U.S. court sent an American spammer to jail, thanks to a ruling by a Virginia Supreme Court. Last Friday, the state's high court upheld the first felony conviction for illegal spamming in the United States when it ruled 4 to 3 that Virginia's antispamming law didn't violate the free speech rights of Jeremy Jaynes.

Virginia Attorney General Robert McDonnell said "the Court's ruling proves that Virginia's statute has a lot of teeth. Thanks to the Virginia Anti-Spam Act, we now have powerful tools to go after e-mail spammers and put them behind bars for many years."

Now, all of the U.S.'s fifty states have strong antispam laws.

McDonnell added "this is a historic victory in the fight against Internet crime and email spam. Spam not only clogs up e-mail in-boxes, mail servers and destroys productivity, but it also defrauds citizens and threatens the online revolution that is so critical to Virginia's economic prosperity."

Four years ago, a jury in Loudoun Circuit Court in Virginia convicted Jaynes, of Raleigh, N.C., on three counts of violating the state's antispam law and sentenced him to nine years in prison. It was the first felony conviction in a spam case, according to the state's attorney general's office.

Overall, the narrowness of the decision indicates that it wasn't a slam-dunk, said Ari Schwartz, v.p. of the Washington-based Center for Democracy and Technology. "In general, the courts have provided slightly less protection for commercial speech than for political and other kinds of speech, so it's not terribly surprising to hear a court uphold this but also that it was somewhat controversial," Schwartz said.

He added "when you just hear the headline saying that a spammer conviction was upheld and see a 4-3 ruling, the first thing you think is spam isn't speech. But if it's just about misleading commercial speech, it wouldn't be entitled to First Amendment protection in the first place.

Schwartz added "however, if commercial speech isn't fraudulent, there might be other questions about where the lines would be."

Using AOL's Virginia-based private network, prosecutors argued that Jaynes peddled products to unsuspecting victims worldwide. Prosecutors also said Jaynes made millions of dollars on the fraud.

Jaynes, who the attorney general's office describes as the eighth-worst spammer in the world on the Spamhaus Project's Registry of Known Spammer Organizations, was accused of employing aliases and bogus Internet domain names in high-volume spam mailings that pushed various phony products.

Breaking the law qualifies as a Class 6 felony if:

  • The volume of spam transmitted exceeds 10,000 in any 24-hour period, 100,000 in any 30-day time frame or 1 million in a year's time.

  • Revenue generated from specific spam exceeds US $1,000 or total revenue from all spam transmitted to any Internet service provider exceeds $50,000

  • The defendant knowingly hires, employs, uses or permits any minor to assist in the transmission of spam.
  • On average, prosecutors brought evidence of over 53,000 illegal spam transmissions Jaynes had sent in a three-day period in July 2003.

    Initially, Jaynes' attorney, Thomas Wolf, reportedly said the ruling whittled away at freedom of speech rights.

    Virginia's antispam law prohibits the sending of unsolicited bulk e-mail by fraudulent means, such as changing the header or routing data to prevent recipients from contacting or determining the identity of the sender.

    John Palfrey, executive director of Harvard Law School's Berkman Center for Internet and Society said "this decision is a very good thing for the fight against spam. I'm a very strong believer in the First Amendment, but there is a point where the First Amendment doesn't protect criminal activity."

    Palfrey added "law enforcement has been hard to do and, to the extent that people have been dissuaded from breaking the law and to the extent people have been dissuaded, it has been very low."

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    Source: The U.S. Justice.


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