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back to article Virginia de-convicts AOL junk mailer Jeremy Jaynes

Notorious American AOL spammer Jeremy Jaynes had his nine year federal prison sentence overturned today, when Virginia's high court ruled the state's tough "anti-spam" law violates the First Amendment right to free speech. The court unanimously agreed Virginia's anti-spam law is "unconstitutionally overbroad" because it bans all …

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OK I can see the free speech angle

However annoying it is, and I don't believe free speech counts for advertising, does it?

But considering he is using fake email addresses to hide his identity which almost certainly use domain names owned by other people surely there must be some sort of identity fraud angle they can do him on.

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Flame

Did he get banged up already, or...

I re-read the article a couple of times and couldn't work out whether the low-life scum got banged up already and has at least served a bit of time, or whether he was still out and about pending his appeal, and has therefore received a "congratulations, carry on please" certificate for his previous work, and sent a corresponding signal to anyone inclined to follow a similar career.

Anybody know the judges email addresses? ;)

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Anonymous Coward

Who else

I'm no fan of spam, but It's nice to see "right to engage in anonymous speech" upheld.

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Unhappy

Gee Thanks Judge

So the American constitution is a licence for some antisocial USA citizens to send unwanted junk to the rest of the world?

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retroactive?

"....However, the law cannot apply to Jaynes because it was adopted after the emails in question were sent."

Would it be the first time a law has been passed then applied retrospectively?

Its not like they dont just make it up as they go along.. or is that just for British nationals accused of "cybercrime"?

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Useless judge

Spamming and speech are two very separate things, and if a judge cannot tell the difference then he is unfit to be a judge.

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Unhappy

Americans, stupid as always

So, America's stupid judges would also consider that Freedom of Speech gives everybody the right to recruit an armed gang and break into a newspaper's HQ, forcing its staff to stop printing news and the material its advertisers have paid for, and instead print and distribute adverts for a product of the spammer's choice?

Because that's exactly what the spammer is EFFECTIVELY doing when he commandeers AOL mail servers and forces them to distribute his spam unpaid.

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Carrier costs.

So if I go around stuffing postboxes (the usual, snail mail kind) with as cheap as possible letters without stamps, then I can also succesfully make a plea based on free speech if the postal office complains?

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In the name of god...

I don't understand how these idiots get in power.

Is it just some sort on thing with being from the USA.

We must make retarded decisions?

For the love of all email server administrators everywhere.

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The "Free Speech" Defense?!?

I can't believe I'm hearing this argument being revived by a court!

I remember spammers, after having their accounts canceled, threatening to sue ISPs, citing "Free Speech" sometime back, before any formal anti-spam laws came about in North America. The providers basically said "Go for it!".

Very few of these spammers actually tried following through with the threat. I think this was mostly because they damned-well knew such a defense was feeble at best. The few that tried, got nowhere, as predicted.

Physically, Free Speech ends at your property line. If someone penetrates that line and knocks at your door, you have the right to decide if they can speak to you.

Your postal mailbox and your e-mail inbox have the same status.

You decide whether anything placed in them is acceptable. You have the right to request the cancellation of any ongoing postal mail that doesn't fit that description (albeit, that is probably an exercise in futility), and you have the right to deny e-mail from any source that you determine is just spamming you. This right always existed - why there was never a proper mechanism to actually have it enforced is anyone's guess.

I find it odd that - at a time when America's Constitution (and Canada's) is being constantly trashed at every turn by its own government - a court would suddenly decide a prolific, convicted, repeat spammer deserved protection under the First Amendment.

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Fucking hell

9 years for spamming is ludicrous, people get less time for murders. WTF is wrong with that hellhole.

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Boffin

nine year federal prison sentence??? I think not.

If he was convicted of violating Virginia Law, then he could not be serving a "nine year federal prison sentence". He had to be serving a "nine year state prison sentence".

Next time, get an American to write the article. If it was an American who wrote it, next time get one who actually graduated from High School.

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Agee should read Rowan vs. USPO

"Justice Steven Agee wrote in today's ruling that the state law violates "the right to engage in anonymous speech, particularly anonymous political or religious speech" protected by the First Amendment."

Excuse me? So this fucking idiot judge (lower case on purpose) won't mind me calling his cell phone every hour on the hour, 7 days a week, in order to tell him he's a fucking idiot? Hell, I won't even do it anonymously! Clearly I'm making a political statement ... Freedom of speech & all that!

However, didn't SCotUS already say otherwise? See:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=397&invol=728

Quoting from the above:

"Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit; we see no basis for according the printed word or pictures a different or more preferred status because they are sent by mail. The ancient concept that 'a man's home is his castle' into which 'not even the king may enter' has lost none of its vitality, and none of the recognized exceptions includes any right to communicate offensively with another. See Camara v. Municipal Court, 387 U.S. 523 (1967).

Sometimes I wonder at the fuckheads we have in power in this country ...

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Tom
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Free Speech

They are not saying that the spam is protected free speech. They are saying the law is bad because it could block protected anonymous free speech. But this is not some "I know it when I see it" anti porn law, if you fake the from address it's not permitted.

If you want to send anonymous email you setup a Yahoo account at an internet cafe or use an anonymizing service. But if you spam from the account it will get killed. Even it it's protected speech you can't spam it.

The purpose of using a fake from address (often belonging to some one else) is not to make your email more anonymous, it's to make it harder to kill, and easier to bypass spam filters.

So any law that blocks something that could be used for anonymous free speech is bad? I could hack a web server and post anonymous free speech, or I could use a bot farm to send anonymous free speech.

Just because something could in theory be used for free speech is no reason to allow it.

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IT Angle

Virginia Supreme Court judiciary = idiots

...Unfuckingbelievable. Are we swimming amongst a sea of fools and idiots? Please tell me that there are at least a handful of judges who understand these newfangled intercomputerwebthingummies.

The article has intimated the sheer stupidity of this whole thing a few times, but hasn't gone so far as to explicitly state this - but I'll do the legwork for them.

Their argument for overturning the ruling is so full of holes it's laughable.

"The court unanimously agreed Virginia's anti-spam law is "unconstitutionally overbroad" because it bans all unsolicited bulk email with false or misleading originating addresses, both commercial and noncommercial."

So what's the problem? It's UNsolicited - and it's technologically unfeasible to have the email equivalent of a Do Not Call list unless you want to turn yourself into the internet equivalent of a Xenophobe (accepting no email at all except for from a close circle of friends, and that's not a sacrifice you should have to make just to avoid spam).

"Justice Steven Agee wrote in today's ruling that the state law violates "the right to engage in anonymous speech, particularly anonymous political or religious speech" protected by the First Amendment.

Agee added that "were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute."

"Publius" was used as a pseudonym in 1787 and 1788 by Alexander Hamilton, James Madison, and John Jay to argue for ratification of the US Constitution."

As the article intimates, for political comment this is fair enough - there was nothing like email in the 1800s. If someone had gone round posting unwanted "prolonged enlargement of the phallus" letters to the gentry of the land, they would have been promptly lynched (and maybe we need to revisit that concept).

Are they stuck in the 1800s themselves? Do they not *GET* the entire concept of email? Fortunately Bob McDonell seems to have an ounce of a clue, and let's hope that he can convey the bleeding obvious to an Appeals court.

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IT Angle

Carrier Costs...

@ Marco van de Voort said: "So if I go around stuffing postboxes (the usual, snail mail kind) with as cheap as possible letters without stamps, then I can also succesfully make a plea based on free speech if the postal office complains?"

Actually, no you can't... the reason being, at least in the United States, federal law prohibits placing any matter in a mailbox on which the postage (stamps) has not been paid. The law has been tested and upheld a number of times in Federal court. The law authorizes a fine of up to $300 PER LETTER or other material, plus the postage that should have been paid. Thus someone who stuffed 1,000 mailboxes before being stopped could be on the hook for over $300,000.

IT angle? You need a computer to calculate the fines. BRING BACK PARIS

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Would you get some perspective, please?

We're talking about Spam, i.e. unsolicited e-mail. Not murder, nor armed-robbery, nor kidnapping; it's e-mail that is not solicited.

Nobody, not even the judge in this case, is saying that what he did was fine, nor that he should be let go without punishment. They are just saying that the particular law the state threw at him is unconstitutional for various reasons. That just means two things: first, go back and make a better case that relies on existing laws of subverting proprietary systems and electronic trespassing and such (of which there are many); and second fix the damn anti-spam law to be more narrow in prohibiting unsolicited commercial advertising without preventing freedom of speech.

This is what happens when lazy legislators make knee-jerk reactionary laws to please the populace without proper research into the legal implications of the statute.

-dZ.

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Unhappy

Make the punishment fit the crime

It's a shame that this waste of DNA got off so lightly. Since I think it takes on average 10 seconds or so to recognize a spam email & delete it, how about 10 seconds in prison for every spam email the guy sent? Throw in a hefty fine equivalent to the amount poor fools were bilked by whatever scam was running, maybe another year for the man hours spent securing networks against this crap, and then a few years of community service working for "Geek Squad" or something similar, cleaning up infected computers for free?

That'd still keep an asshole like this busy for a long, long time.

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Lazy legislators

It is quite heartening to see poor laws being kicked into touch. I think these judges deserve our gratitude.

The legislators need to go back and redefine the criminal act properly so that they outlaw only what needs to be outlawed.

I expect that a few of the bash the judges commentators on here are (rightly) first up to complain when anti-terrorism laws are used against eco-protestors or RIPA is used disproportionately. These situations are exactly where knee-jerk law making gets us to.

The problem is that legislators never see further than the next headline/popularity poll and some of them actually use the piss-poor-media generated hysteria around issues to deliberately push overwide laws.

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Fine distinction

The judges observed that the Virginia law does not distinguish between commercial spam and other anonymous bulk mail, and took this as a reason to declare the law in contradiction to the first amendment.

They refer to the time when American democrats used the mass media of the time to distribute political statements anonymously, and consider that there must be a similar possibility with respect to today's media.

This interpretation explicitly allows for a law against commercial spam, so the Virginia legislator should be able to fix the problem, as the federal legislator has done already in the meantime.

Democracies need to find a clear line on the possibility of anonymous free speech on the internet. Russian officials want to use the fight against spam to suppress what they call 'political spam'. We must make it clear that we cannot accept this approach to what effectively will be email censorship.

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spam doesn't scale

"They refer to the time when American democrats used the mass media of the time to distribute political statements anonymously, and consider that there must be a similar possibility with respect to today's media."

This line of reasoning is bogus. Back then, the distributors paid all costs of distribution. Today, spam arrives postage due (I pay for my bandwidth, CPU and storage). Non-electronic junk mail is self limiting in that it actually costs money. With email, sending 100 costs roughly the same as sending 100,000, which in turn costs roughly the same as sending 100,000,000 ... which is why we have the problem.

THINK, people! Do you REALLY want every little two-bit "charity" world-wide sending you beg-letters via email every couple of hours? Think globally here (if you've been taught to think, but that's a rant for another day ...)

Quite simply, spam doesn't scale ...

jake

jaded old email admin

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Unhappy

Unfortunate

Apparently, if the law goes overboard in extreme cases, it is annulled, not just reduced to what it should be.

I don't really get it. Does it mean that if the law against murder is found to go overboard when it asks for death penalty, then murder suddenly becomes allowed?

Anyway. That guy got lucky. Hopefully he won't start again, since he'll probably be under close watch...

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misapplication

This is a misapplication of the law. anonymous speech, politcal speech etc. should of course be upheld - this however, clearly is Shouting Fire in a Theater - which is PART of the same amendment. maybe the judge stopped reading half way through.... either way he is proving himself incompetant in his interpretation and application of the law. fail. step down now...

This also touches on the important issue of - how people with zero understanding of technology are presiding over it in legal matters... Judges should be Required to retain an expert IT witness for every single case involving technology. They would not presume to make medical decisions without a doctor as an expert witness would they? same damn thing... pathetic.

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