Spammer conviction overturned. It's "free speech". [Telecom]

It is worth noting that the Virginia Supreme Court had already *affirmed* Jaynes' conviction, but allowed him to initiate a challenge to the law on

1st Amend. grounds anyway.

As _I understand it, this means that his conviction *STANDS* -- he was not sending material that was in a category that was part of the 'overly broad' restrictions; that what he was sending was material which was 'legitimately' regulated by the statute. On the issues 'unrelated to' his conviction, the statute was found to be too inclusive, and voided as regards _future_ legal actions.

***** Moderator's Note *****

Someone please explain why the _VIRGINIA_ supreme court was involved in an appeal of a _FEDERAL_ prison sentence.

Bill Horne Temporary Moderator

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It was a state law. Virginia's state anti-spam law was overturned by a state court because it was overly broad, including political and other noncommercial email, not just commercial, in its prohibitions. The federal yes-you-CAN-SPAM Act is a different animal.

Cuz it _wasn't_ a Federal case.

Jaynes went away on violation of STATE law.

The VA Sup. Ct. found a Constitutional problem with VA _STATE_ law that he was convicted of violating.

The (u)CAN-SPAM act did not pre-empt _all_ state laws regarding email and the Internet.

I think he may be serving time in a Fed facility =outside= of VA, to be near what friends/family/etc he has -- a 'mercy' thing negotiated for by VA, and the Feds had 'available space'.

You should read the decision, which isn't long and is pretty readable considering how technical it is. Their choices were either to affirm the law and let the sentence stand, or throw them both out. They did the latter. See my blog entry at

The state AG says he'll appeal to the US Supreme Court, so I presume Jaynes stays in jail until that's either heard or more likely not accepted. The state might also try him on ordinary fraud charges, which would have a good chance of sticking.

It's not a Federal sentence. It's a state case under the Virginia anti-spam law, for stuff Jaynes did in 2003 before CAN SPAM came into effect.

R's, John

Great, now we have legal precedent treating spam as protected speech. Very little spam lands in my inbox anyhow because I have PopFile running on my machine and it's pretty effective.

What they said is that *some* spam is protected -- i.e. it depends on what you're spamming about. The problem is that the law is too general, it prohibits both commercial (unprotected) and non-commercial (potentially protected) spam, which violates the First Amendment.

Both the alum.mit.edu forwarder, and my ISP server that my mail gets forwarded to, have spam filters. Yet I still get 5-10 spams/day in my inbox. Mac Mail's spam filter recognizes about half of this.

Actually, the last I know Jeremy Jaynes was free on $1M cash appeal bond. Maybe the state of Virginia could re-indict him on obscenity charges for his "teens n horses" spams.

I have to say, my PopFile install is running at about 99.1% accuracy rating in classifying spam and legitimate mail. It took a few months to train it to that level but I rarely get spam in my inbox. Occasionally something that's legitimate might get tagged as spam but it's easy to mark it as personal and add a magnet to it so it'll never get tagged as spam again.

***** Moderator's Note *****

Bragging about the effectiveness of a spam filter is like bragging about the effectiveness of a sewerage treatment plant in removing Dioxin from the local water supply.

I'll end this sub-thread here.

Bill Horne Temporary Moderator

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There was no federal law during this period.

Let's start with the idea that free speech is a civil right. [This is technically a "freedom to publish" issue, but they are related.]

Spam is the "method of publication", unsolicited, sent in great quantity. It's not about the message itself. The message may even important (by the author's definition) and not selling anything. Some day civil defense authorities may claim they need everybody's email address to send unsolicited announcements of air raids. More likely they'll tell everyone not to be outside during a severe thunderstorm or to vote for the incumbent mayor.

The law shouldn't restrict spam for there may be circumstances in which a spammed message, even with commercial content, is protected speech. Instead the law should make illegal various forms of bad behavior, starting with fraud. Forging From lines should be illegal. Falsely claiming association with a domain or network should be illegal on a From header or pre-loaded Received headers. Open proxy abuse should be illegal.

Maybe there is a right to anonymity so perhaps as long as there's no false association with an actual domain or email forgery, it's legitimate. A right to anonymity is not a right to misrepresentation.

I don't know what aspect of the Virginia law strayed into unconstitutionality.

It appears that he was convicted of charges of network trespass unrelated to freedom to publish, and that it was merely for the inbound messages. Why weren't the outbound methods criminalized, like email address forgeries on From?

***** Moderator's Note *****

I couldn't disagree more. The idea that _any_ unsolicited message is protected speach is akin to saying that a barker hustling customers in front of a striptease is entitled to demand that passerby pay a cover charge before being allowed to proceed, and be forced to listen. Spam is junk mail sent "postage due", and I don't give a hoot what the originators think they're entitled to: _I_ am entitled to peace and quiet.

Bill Horne Temporary Moderator

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That's a rotten analogy.

I would anticipate that political messages may very well fall under civil rights protections, even if spammed. After all, Congress made that distinction in the Do Not Call registry. Unsolicited telephone calls are more instrusive than unsolicited email messages.

That's a rotten analogy too. No one is forced to receive postage dues.

You don't get to disagree with what the Virginia Supreme Court finds to be unconstitutional. There can be noise associated with free speech. I was simply suggesting a way that the law should have been written to accomplish most of the desired objectives.

You know, you fail to appreciate the irony that you appended your remarks to my message upon approving it, given that we were discussing issues related to freedom to publish. This is one of those cases that you should have simply left my message unaltered, or rejected it. Yes, I know it was Pat's tradition.

***** Moderator's Note *****

I think it was Voltaire who said "I may disagree with what you say, but I will defend to the death your right to say it". I don't reject posts I disagree with (so long as the usual criteria are met: relevence, no ad hominem attackes, etc.). I do, however, sometimes exercise the moderator's prerogative to add my comments.

In cases like this, where I feel very strongly about the subject and want to respond at length, I will usually "step out of the chair" and respond by replying to the post so that my name appears in the "From" line. However, today's been exceptional for the reasons I wrote about earlier: I was in a hurry and added my remarks under the moderator's note. I'm doing it again while I listen to the presidential debate, but I'll post my rebuttal as a reply when time allows.

FWIW, I had a cousin who was an substance-abuse rehabilitation councilor: I told him once about something I thought I should have done, and he gave me some very good advice: "Don't should on yourself".

Bill Horne Temporary Moderator

Please put [Telecom] at the end of your subject line, or I may never see your post! Thanks!

We have a new address for email submissions: telecomdigestmoderator atsign telecom-digest.org. This is only for those who submit posts via email: if you use a newsreader or a web interface to contribute to the digest, you don't need to change anything.

99% of the spam comes from overseas sources so they have no free speech rights.