Court Finds Spamming Not Protected By Constitution

eldavojohn writes "In a split (4-3) decision, a Virginia court has upheld the verdict against the spam king making it clear that spam is not protected by the U.S. Constitution's first amendment or even its interstate commerce clause. 'Prosecutors presented evidence of 53,000 illegal e-mails Jaynes sent over three days in July 2003. But authorities believe he was responsible for spewing 10 million e-mails a day in an enterprise that grossed up to $750,000 per month. Jaynes was charged in Virginia because the e-mails went through an AOL server in Loudoun County, where America Online is based. '"

Comments

Others Pay for It...

[Phoenix-IT]

When you're sending millions of messages a day to people who don't want them and other people (usually the ones footing the bandwidth bill) are paying for the connection, you are guilty of stealing at the very least... And in the case of mass spammers you're stealing a whole lot of bandwidth you're not paying for.

argh

[nomadic]

Can we get a little editing please? You don't have to be a lawyer to know that a jury would never be able decide on the constitutionality of a statute, so you should know something is wrong with the headline right off the bat. The Virginia Supreme Court is not a jury.

Re:argh

[value_added]

They are not editors; they are posters. It's no different than someone aggregating news articles and posting them on all the other 'geek' sites. It was just one of the first to add discussion to the mix and thus became famous ... Do not expect editing here, ever. It will not happen.

I don't think that's accurate. Story submission is not automatic, and editing does happen. From the FAQ:

Slashdot gets hundreds of submissions every day. Every day our authors go through these submissions, and try to select the most interesting, timely, and relevant ones to post to the homepage. There are probably as many reasons for stories to get rejected as there are stories, but here are some of the more common ones: ... Badly worded subjects, Broken or missing URLs, Confusing or hysterical sounding writeup, It might be an old story, It might just be a busy day and we've already posted enough stories, Someone already submitted your story, Your story just might not be interesting!

Any of the above can be, and typically is, defined as editing. Unfortunately, what is missing from the list of criteria is a Common-sense Review of the Content (an onerous, time-consuming task, impossible to perform with a high school education or a quick Google or Wiki search, no doubt).

As to why that omission exists, my guess is that it's deliberate.

Re:argh

[arbitraryaardvark]

I read this case this morning.
I thought about posting it to slashdot, because it's new news about spam, but I ended up deciding not to.
The 49-page decision is rather technical, and I didn't think slashdot editors and readers would be able to get a good handle on it.
The court's main argument was that defendant didn't have standing to raise an overbreadth First Amendment challenge, because he was engaged in misleading commercial speech.
The court based this "rule" on one lone case from 1972 about topless dancing.
That case was based on another Virgina case that was overturned by the Supreme Court.
The rule depends on the idea that states can have different rules about First Amendment standing than federal courts can. This is true in that state courts can have less restrictive rules, because states aren't limited by article 3 of the us constitution, but it's far from clear that states can have more restrictive rules.
The court's treatment of commercial speech as less protected is also problematic, and Justice Thomas at least believes that commercial speech is substantially protected by the First Amendment.
The dissent (3 judges to 4 in the majority) ridiculed the standing decision,
pointing out that anonymity on the internet is protected under the Supreme Court's precedents such as Watchtower v Stratton and McIntyre v Ohio Elections.
The majority also rejected Defendant's reverse commerce clause argument, and may or may not have gotten this part of the decision wrong.
In this case, D. was spamming aol users, from a stolen list of aol users, so he had reason to know his spamming would impact Virginia. But the statute is problematic. It says that if a person in Hawaii emails an aol user in Alaska, they are subject to Virginia law, because aol happens to have its servers in Virginia. This is in tension with the general idea that states don't get to regulate what's going on in other states.
Justice Thomas rejects the whole idea of reverse commerce clause arguments, because he points out that there is no reverse commerce clause in the constitution. But a current majority of the court does accept the idea, and it isn't altogether clear how they would rule if that issue gets a petition for certiorari.
Defendant made some third losing argument I no longer remember.
The opinion is here in pdf: http://www.courts.state.va.us/opinions/opnscvwp/1062388.pdf

If some of the above seems unitelligible and jargonated, see how I feel about slashdot posts that are just strings of initials and numbers that you guys know what they mean but i don't.
Above post is informative and insightful, because I'm a karma whore.

Re:My first "You're advocating a ..."

[_Sprocket_]

Great job! Except for the niggling fact that they did, in fact, catch him.

Re:What's most worrisome

[mr_matticus]

Lacy, Lemons, and Koontz. 10 seconds on Google would have gotten you the answer.

Re:Eh, not really

[belmolis]

Many states have freedom of speech provisions in their constitutions, sometimes provisions that are stronger than the First Amendment. State courts certainly do rule on these. Furthermore, a state court can and will rule on whether a state law violates the federal constitution. The US Supreme Court of course has the last say, but that doesn't prevent a state court from addressing the issue.

No Jury

[frovingslosh]

Leave it to slashdot to get the headline dead wrong. Actually, this was an appeals court decision, there was no jury involved in this ruling. A jury finding of guilty was several years ago, and the spammer has been out free on appeal enjoying his ill gotten gains ever since. The ruling on interstate commerce issues and first amendment issues was not made by a jury. Curiously, there seems to be no word on him actually reporting to serve his sentence, so he may still be free.

Re:You should be able to send all the spam you lik

[techno-vampire]

I don't know about you, but I, at least, would not find one First Class delivery a week acceptable! I get checks, appointment notices and medicines from the VA through the mail and would prefer to continue to receive them in a fairly prompt and timely manner, TYVM.

AIUI, junk mail helps keep First Class rates down because that's the way the bulk mail rate was designed. It's less than First Class, but more than it costs to process, leaving some extra to help defray other expenses. The way it works is, bulk mail must be pre-sorted by zip code in order to qualify. This cuts down on the amount of work considerably, so that even at a reduced rate, bulk mail costs the Postal Service less to deliver than they charge. Also, of course, much of it is sent locally, which lowers expenses even more.

Re:Since when is an apellate court a jury?

[Mavrick3020]

There was no Jury. The appeal was taken to a Superior court, which usually consists of a panel of judges.

Re:Interstate Commerce Clause?

[cetialphav]

How would anyone use the Interstate Commerce Clause as an argument that spam is protected speech? No one is using that argument. The spammer is arguing that Virginia's anti-spam law violates both the Interstate Commerce clause and Free Speech. He is arguing that because his spam mails crossed state lines, then only the federal government would have jurisdiction because the federal government regulates interstate commerce. The spammer is also arguing that spam itself is legitimate speech that is protected by the first amendment. He is arguing that the law is invalid because it violates two parts of the constitution. If the judges were to agree on either point, he would be set free.

Re:You should be able to send all the spam you lik

[NetSettler]

Do you realize that 'mail to resident' is where SPAM first got started, all those years ago? If it weren't for that then it's postulated less likely that email SPAM would have ever been conceived of in the first place.

I don't think you're selling people short. I think it's "obvious" that it was inevitable that it would be tried. I'll explain why...

I think where you're right is that there is a commonplace two-step meta-pattern where an idea is tried for an innocent reason and after succeeding someone tries to repurpose the idea for other purposes. So in your case, you're suggesting that if 'mail to resident' hadn't happened, variations and repurposing would not have been able to happen. Probably. But 'mail to resident' wasn't a one-time shot that if it didn't happen on a certain day wouldn't exist. It would have come another day. And even if not, other equivalently powerful and repurposable ideas would have.

For example, 'mail to many' is capable of being repurposed in the same way. Multiple-recipients could be said to be just as enabling. It wasn't in paper mail, after all--a piece of mail mostly went to one recipient (except those interoffice memo things where you could keep re-forwarding the same junk, checking off your name). So once the cost of sending to many was lowered to just naming who gets copies, that was also an enabling factor.

Many years ago (somewhere around 25 years ago, I think), when email was still young (not brand new, certainly, but still not heavily evolved) and when there were not many machines on the then-ARPANET, I obtained a piece of software written by someone at a certain texas university that was on the net. I wanted to reach the author, but had no idea how to find him. So I sent an email to smith, asmith, bsmith, etc. up to zsmith hoping to find someone at that site that knew the guy I wanted to reach. We didn't get tons of email back then, so this wouldn't have been obnoxious like it was now... There was no web back then, and no search engine. I don't even know if there was the 'postmaster' convention yet. (Maybe if there was I'd tried it and failed to get a response.) And hsmith replied, by the way, offering just the helpful info I'd hoped for. The rest of the mail bounced. I never used the technique again, but would not have hesitated to recommend it to another if they were desperate. My point in telling the story is just to say that ideas like this do present themselves when people are faced with barriers. It's the natural way things go.

So I doubt any claim that if 'mail to resident' hadn't happened, SPAM wouldn't have either. Because if someone could come up with the idea of blasting out a query for benign reasons, someone could conceive of pushing that to whatever limit made financial sense.

You could almost make the case that if 'mail for free' had not been invented, no one would have wanted to send tons of mail to people who might not care. That would have reduced volume. But there is a large and thriving junk mail industry even when stamps cost money, so even that isn't true.

I do think that "free email" is the real culprit. We all say we like it, but most of us pay more per year in time and money getting rid of spam than we would pay to deliver mail. In effect, we all subsidize spam in the guise of getting something for free... On net (pardon the pun), we don't get email free, and it would be lower cost if we charged for it.

The same is true for physmail junk mail, by the way: We subsidize it by the lower prices it gets. That's a business decision by the post office, but in the interest of the overwhelming resource usage and waste disposal concerns, I think it's ever more clear it should be at least the same price, if not much higher. But the problem isn't (any more) send to resident, since now they all swap mailing lists. The problem is, again, 'send to multiple'. And with global warming upon us, the stakes are even higher than with email spam.

Virginia Supreme Court decision link

[cetialphav]

The full text of the Virginia Supreme Court's decision is available here.

Re:Eh, not really

[cetialphav]

3.) This will obviously be appealed to the Supreme Court (that's the only outlet left after traversing the State courts), and, my guess is, it'll be shot down. The defendant's attorney is correct when it states that the VA law doesn't make exceptions for explicitly protected free speech, such as political speech, and the Supreme Court's strict scrutiny standard for this kind of thing won't let it through. VA may re-write the law to prevent commercial SPAM as different from SPAM that's simply expressing an opinion, but that'd be open to a variety of challenges as well. Actually, the major point in the law and his determination of guilt was that the mail was sent with fraudulent headers. The Virginia law specifically disallows this. Had the spammer not forged the source of the mails, he would likely not have been found guilty. The spammer argues that this prevents anonymous speech which is generally protected. But it seems reasonable to me to require that commercial solicitation provides information about the source. Why should commercial advertisements be anonymous? The whole point is to get business.

I think the lack of exception for political and religious speech will not be an issue for SCOTUS because this guy cannot argue that he was engaged in political or religious speech. His mails were clearly soliciting business. SCOTUS rulings are generally pretty narrowly focused on the case at hand. So the real issue would be whether restricting anonymous bulk commercial emails violates free speech protections. If he had sent political messages, they would consider that, but since he didn't, they won't.

4.) Nine years? He was found guilty on 3 counts (each count is a class 6 felony). His trial only focused on three products that he pushed on three separate days. His sentence was 3 years on each count to run consecutively. He certainly generated way more spam than this, though. His assets were listed as $17 million and he had a net worth of $24 million. In each of 2001, 2002, and 2003 his "business" generated over $1 million. I imagine that he could have been prosecuted on much more than 3 counts. In my mind, nine years in jail for making millions in a fraudulent business seems like a reasonable punishment.

Free speech doesn't extend to private property

[tomhudson]

Network intrusion is not a speech issue and is already illegal. Go after them with that and leave my right to speak freely alone.

Last I looked, the Internet isn't like "the public commons - most of the networks accessed by spammers are privately owned. You have no protections for "free speech" in the co-opting of others' private property against their terms of use, and to the detriment of their customers. So, in the "spirit of free speech," take your bullshit opinion and go fuck yourself round the rim with it. Twice.

There is no defense for sending out tens of millions of pieces of spam. Both the spammer and anyone who buys crap from them needs to be punished. This is no more a free speech issue than the "right to lie" in advertising is.

Re:Free speech doesn't extend to private property

[whitehatlurker]

Perhaps, but what is scary is that the minority opinion - of almost half of the judges - did indicate that the law was overly broad and may be construed to hamper (e.g.) religious speech.

I am probably more offended by the religious and political spam that I've recieved than by the commercial spam. The shear bulk of the commercial make it the umm "winner" by force of arms.

3 of 7 of your judges need a clue.

Re:Since when is an apellate court a jury?

[jonbryce]

But there isn't actually anything new here as far as I can see. Look at for example Compuserve v Cyberpromotions (Samford Wallace). It said exactly the same thing.

Re:You should be able to send all the spam you lik

[Registered Coward v2]

I hear this said a lot, could somebody please explain to me how larger, heavier mail which costs much much less could possibly subsidize smaller, lighter mail which costs much more?

To name a few reason Bulk Mail is profitable:

presorted by zip - much less handling
doesn't use a printed stamp - no cost for stamp printing
generally mailed locally or short distances - no cross country airplane ride for the same price as a piece that goes two doors down in the same town

Seems to me that is junk mail was eliminated, the Post Office could get rid of much of its trucks, drivers and infrastructure. Without junk mail, I'd say residential delivery could be scaled back to one delivery per week, meaning one truck could serve six different routes instead of six different drivers and trucks going out every Mon-Sat. All that overhead eliminated would raise first class rates how? And now the remaining trucks would be loaded with letter sized full-rate first class mail instead of giant heavy bundles of newsprint mailed out for a few pennies each. How is that not better revenue for the post office?

The problem is you've only addressed one small part of the cost structure - drivers - and not the rest of the infrastructure needed to haul mail around the country. You still need post offices to take mail; sort mail; etc. - and in some smaller service areas two days may cover everyone - so do you close the post office the rest of the time and make all the employees part timers? Rural delivery is already done in some areas by carriers who own their own vehicle and get paid to use it; so then there are even less savings.

In addition; as people turn to electronic delivery less volume will go through the USPS; so prices need to go up to cover the large fixed costs - and tiered rates may be needed to reflect the actual delivery cost, much as is done for parcels today.

The real advantage the USPS has is they go to every house every weekday - if they could partner with FedEx / UPS to do their residential deliveries they could increase their revenues while reducing FedEx / UPS's costs for home delivery.