Court Changes Mind, Strikes Down Anti-Spam Law

The Virginia Supreme Court agreed to reconsider its original judgment on the state’s anti-spam law, which made it illegal to send email using an anonymous email address or IP address. Their new decision: prohibiting anonymously sent emails is a violation of the First Amendement.

The court noted that “were the ‘Federalist Papers’ just being published today via e-mail, that transmission by Publius would violate the [current Virginia] statute.”

The real problem with the statute is that it’s overbroad, said the court, and it can’t simply be reworded. We assume this means the state legislature will have to start over, and this time limit the statute to “commercial or fraudulent e-mail, or to unprotected speech such as pornography or defamation.”

This is one of those feel-bad judgments—ultimately we agree with the court that the law needs to be more specific in order to limit its power, but in the meantime this means that spam king Jeremy Jaynes, who had been sentenced to 9 years in prison in 2004 under the newly enacted law, is now free to resume spamming until a new, better worded statute can be drafted.

“Va. Supreme Court Strikes Down State’s Anti-Spam Law” [Washington Post] (Thanks to Michael!)
(Photo: Getty)

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  1. johnva says:

    I have to disagree with this reasoning. While certainly anonymous speech should be permissible, it shouldn’t necessarily be permissible VIA UNSOLICITED EMAIL. The reason is that with email it costs the recipient of the message money to process the spam. If the recipient’s organization handles a LOT of spam, then it can cost a LOT of money for more powerful servers, bandwidth, etc. It would be analogous to someone spamming millions of text messaging users, costing each of them money to receive.

    So while I fully support anonymous speech where receipt of the speech is optional and can be controlled at minimal cost (for example, on a website that no one forces me to go to), allowing anonymous speech on something like email is just a green light for abuse.

    • m4ximusprim3 says:

      @johnva: Yeah, but the british government could have argued that it cost them a lot of money to burn all of the copies of the federalist papers.

      I agree that one of the tenets of the law should be content- if the mail is for the purpose of financial gain or contains objectionable material, only then should it be prosecutable.

      • johnva says:

        @m4ximusprim3: A problem with that, though, is that it puts the government in charge of arbitrating what is “objectionable” content. I don’t think the federalist papers thing is a good analogy, because that is the BRITISH GOVERNMENT. The cost of spam falls on private individuals and organizations who are forced to listen to the spammers’ “speech”. You’ve got a right to petition the government or organize politically. You don’t have a right to blast other private individuals with your anonymous speech and make them listen. With pamphlets, you can just ignore it. With spam, “ignoring it” means spending sometimes millions of dollars if you’re a big operation with thousands of email users.

        • RecordStoreToughGuy_RidesTheWarpOfSpaceIntoTheWombOfNight says:

          @johnva: Not to nitpick, but the Federalist Papers were written between October 1787 and August 1788, so the British Government wouldn’t have had anything to do with it. I think you’re thinking of Thomas Paine’s “Common Sense,” which I believe would fit your analogy.

          I agree, though, with the point that neither the Federalist Papers nor Common Sense was delivered to their respective recipients unsolicited and at cost to said recipients, so the Virginia Court’s analogy is flawed.

  2. johnva says:

    To sum up what I just wrote: you’ve got a right to free speech. You don’t have a right to stand outside my house 24 hours a day with a megahorn forcing me to listen to your free speech.

  3. mike says:

    I agree with this ruling in that the judge is right that the law was overbroad. But the judge should just through out the conviction. He should have stated that the conviction was justified in its merits but the law would have to be reworked.

    Hopefully it will go through the VA legislature.

  4. johnva says:

    I just don’t think this is overbroad at all. You don’t have a “right” to make other people pay to listen to your anonymous speech, even if it’s protected anonymous speech. I feel the court unduly discounted the costs associated with spamming.

    • Rectilinear Propagation says:

      @johnva: Exactly!

      Isn’t this the reason unsolicited text messages and spamming fax machines is illegal? Why should it be different with e-mail if it’s costing the person on the other end money?

  5. jusooho says:

    I disagree with the reasoning that just because an unwanted message causes a cost to the reciever of the message, that is enough to ban it.

    When my medium-sized office recieves real-life “junk-mail” from companies I have no relationship with, we must pay someone to sort through the mails and find the relevant messages. Yet no one seriously considers banning “junk mail.”

    The reason is because “junk mail” helps pay for the infrastructure of delivering mail; society has decided that the burden of junk is exceeded by its benefits.

    By the same token, I think that the negatives of an overbroad anti-spam bill outweigh the benefits. Anonymous communication is an enormous benefit of the internet and any bill which changes this should have an overwhelming benefit – one that this bill doesn’t provide.

    • johnva says:

      @jusooho: I think it depends on how big the cost is relative to the cost of (in your example) sorting wanted mail. With spam, sometimes even 99% of all email received at a company email server is unsolicited commercial bulk email. Should a company have to spend that much more just to service the “right” of spammers to blast their junk? Even though they’re just deleting it as fast as they can identify it?

      With bulk spam, the spammers are not charged to use the mail system like they are when they use the postal system. Thus there is almost no disincentive to blast unlimited junk, especially if you can take over other people’s computers to do it. With snail mail, the cost eventually becomes a limiting factor for the junk.

      And banning anonymous/forged email is not even close to the same thing as banning anonymous speech on the Internet. It’s just banning anonymous speech that severely negatively impacts other users of the network. Like I said, people will still be perfectly free to use other methods of anonymous communication, like websites registered under proxy domain registration services, etc.

      • jusooho says:

        @johnva: You say : “With bulk spam, the spammers are not charged to use the mail system … especially if you can take over other people’s computers to do it.”

        Then prosecute against taking over other people’s computers, or level techincal sanctions against bulk-mail senders… (I’m not a technical or legal person so I can’t provide a solution directly.)

        While it certainly seems this Virginia legislation would aid prosecution of spammers, nothing you mention adresses my concern that this Virginia bill is far too broad. If such a bill is needed, why not target it specifically at the criminal elements of spamming that you mention?

  6. DeepFriar says:

    As an anti-Federalist, the state of Virginia can get bent
    /irony

  7. jamesn1 says:

    The real problem with the court’s ruling is that it confuses “anonymous” speech with “fraudulent” speech. The court complains that the writers of the Federalist Papers could be prosecuted for publishing their works as Publius instead of their respective real names, so therefore the statute is an unreasonable prior restraint. That reasoning is wrong in (at least) two ways: a) the statute depends on criminal intent and b) the statue bars fraudulent identification, that is identifying yourself as someone else who actually exists, not anonymous communication, or not identifying yourself at all.

    The court also utterly fails to understand the cost shifting nature of spam (forcing the receivers to pay the bulk of the costs to receive your spam/speech/fruad/whatever), but that’s an entirely different problem.

  8. Starfury says:

    That would explain the sudden increase in Rolex, Viagra, and other junk flooding my inbox.

    I’d also like to thank Yahoo for their spam filter’s inability to weed out the obvious spam but move actual e-mail to my spam folder.

  9. TrustUs says:

    I’m tired of all the Federalist Paper spam. I don’t need a longer, harder constitution.

  10. Ben Popken says:

    Good news for Homer, he plans to release The Illiad, Part 2 via anonymous bulk email.

    • BrianDaBrain says:

      @Ben Popken: ROFL!

      I completely disagree with this statement and I think that johnva got it right. Just like in his analogy, spammers should not have the right to clutter my inbox with unsolicited garbage. I can call the cops on somebody standing in my lawn with a bullhorn, but it seems to be too much to ask to stop people from spamming me.

      • johnva says:

        @BrianDaBrain: Thank goodness someone finally agreed with me.

        I view spam as more akin to disorderly conduct or something like that. It’s not what they’re saying that is the problem…it’s how they’re going about saying it. They’re totally disrupting the normal functioning of society with their antisocial behavior. My right to use email legitimately outweighs their “right” to spam. Things might be different if there were more effective technical means of stopping spam at low cost, but as of yet, there aren’t.

  11. sir_eccles says:

    I wonder what the Judge’s email address is?

  12. Gokuhouse says:

    I’m all for getting rid of spam, buuuuuuuuuuuut, this wasn’t the way of doing it. Good thing it was struck down. This was so broad that it would have made it illegal for anyone to send anonymous email? That’s quite a bit too far.

    All laws should be very specific, it’s the broadly written laws that can be twisted by corrupt people in power.

    • johnva says:

      @Gokuhouse: It wouldn’t ban sending anonymous email. It bans forging transmission data such as IP addresses and domain names in BULK email. That is not the same thing…it’s just banning trying to obfuscate the technical source of your email message. Seriously, why does anyone need to send BULK anonymous email?

      @jusooho: Even if they run their own servers legitimately, they still do not bear the brunt of the cost of the emails system, since they don’t need to store their messages. The receiving end DOES have to have the storage space. It’s already illegal to use botnets and stuff to send spam, but the laws aren’t working. At all.

      Also, in my opinion, this law WAS targeted at the criminal elements of spam (forging the technical information attached to the message). You could run an anonymous email forwarding service perfectly legally under that law as long as the forwarding service itself didn’t forge the routing headers attached to email going out from its server. That way, people could still send anonymous email but it would be easy for the receiving end to block it. The only reason to forge domains the way the spammers do is to evade email filters. Bulk email should be legal, but only SOLICITED bulk email or unsolicited bulk email that allows the technical means to block it.

      Basically, I think the judges just didn’t understand what they were ruling on.

  13. RedSonSuperDave says:

    I agree with the court’s decision. You can’t prohibit anonymous email. Now, I don’t see a problem with prohibiting MASS anonymous email.

    Unfortunately, I don’t see “laws” ending the spam problem. Many spammers are based in other countries where (gasp) the laws of the U.S. don’t apply. Therefore, spamming scumbags won’t know or care if we DO get some decent antispam laws.

    Remember, in Nigeria, the 419 scam is LEGAL. And botnets operated by Russian hackers don’t know that what they’re doing can be illegal, they’re just sophisticated computer programs which redistribute whatever emails are sent to them by their operators.

    • RecordStoreToughGuy_RidesTheWarpOfSpaceIntoTheWombOfNight says:

      @RedSonSuperDave: Actually, the 419 scam is illegal; the 419 reference comes from the section of Nigerian law that prohibits it. It’s just very rarely enforced, due to corruption at various levels of law enforcement and the judicial system.

  14. johnva says:

    Also, I wonder if people would feel differently for different content in the spam. I’m sure that a lot of spam contains stuff that many people wouldn’t their kids reading or seeing, for example, including hardcore porn. Should it be legal to send that out in bulk, anonymously?

  15. johnva says:

    OK, I just read the opinion, and it’s a totally bogus decision based on a totally false technical assumption. Apparently the court just bought some expert witness’ lies on this.

    They put in the decision that they think a ban on falsifying email routing information prohibits ALL anonymous email. Which is absolutely wrong. I can still run, for example, an anonymous remailing service or an “anonymous Gmail” that doesn’t disclose who actually sent a message as long as the email sent from the originating server does not use falsified routing information. The server could still hide the sender’s identity (possibly by not keeping logs), but not falsify its own routing headers. Then anonymous communication would be permitted, but it would be easy for recipients to block the “anonymizing” email server if it became a source of spam.

    So basically, the court is just wrong.

  16. Fredex says:

    Obviously, the court isn’t getting enough spam.

  17. DJFelix says:

    Typical liberal logic. Free speech for me, but not for thee. The judge is right. You should have a right to anonymous email, the law is wrong, and thus the conviction is wrong. Throw it out, and write a better law.

    The fact that we can recognize when a law is wrong, throw it out, and write a better one is what makes America one of the greatest Democracies that has ever existed.

  18. godlyfrog says:

    @RedSonSuperDave: 419 scams are not legal there. The name “419” comes from the number of the criminal code they’re violating.

    I personally disagree with this ruling, because spam is not anonymous email; it’s fraudulent email. The sender is not saying, “I am anonymous,” they are saying, “I am asd45asdfgy@aol.com.” This is much different, as the spammer is impersonating someone else to get around security measures that have been put in place to only allow legitimate access.

    This is akin to a guy with a megaphone on the street making a fake ID to get into Sam’s Club to start shouting in there. He knows if he goes in the building legitimately, his ID will be revoked and he’ll be ejected from the building, so he creates multiple fake IDs to continuously gain access without ever being permanently shut out.

    • johnva says:

      @godlyfrog: I agree. Like I said, having read the opinion, I believe the court was relying on incorrect or fraudulent expert testimony, and/or extrapolating technical conclusions that couldn’t be drawn. They actually believed that falsifying routing information should be protected speech because they thought it’s the only way to send anonymous email. Stupid, and wrong.

  19. A-der. Nothing is ever “published” by e-mail. Just as nothing has ever been “published” by telephone.

  20. RedSonSuperDave says:

    Boy, is my face red. That will teach me to uncritically listen to what people on other forums tell me. I misunderstood “nothing is ever done about it by the legal system” as “it’s legal there”. Sorry for the misinformation, and thanks for the education, guys!

  21. I just want to clarify, particularly in response to johnva’s comments, that the court felt the Virginia statute was overbroad in its language, and that it could therefore be abused. They’re not saying that spam should be allowed; they’re saying that the law needs to specifically ban spam and nothing else.

    The court determined that the law does not limit its restrictions on spam to commercial or fraudulent e-mail or to such unprotected speech as obscenity or defamation. Many other states and the federal government drafted anti-spam laws after Virginia, but often specifically restricted the regulations to commercial e-mails, the court found. The ruling affects only the Virginia statute.