Lawyer Article

Published in the September 15, 2004 issue of Southeast Tech Wire.

Virginia may have the toughest anti-spam law in the nation, many internet industry servers residing in the state, and the will to crack down on spam in a way that affects every internet user in the world. Earlier this year, Virginia charged some of America's most notorious senders of unsolicited commercial email on criminal charges. Those defendants challenged the Constitutionality of Virginia's law. Last month, a Virginia county court struck those challenges, and held that the anti-spam law could be Constitutionally enforced.

Virginia's law is the first in the United States to make a felony out of deceptive spamming. It prohibits use of deceptive routing information and deceptive messages. It holds that a person is guilty of a Class 6 felony for sending more than 10,000 messages in any 24-hour period, 100,000 messages in any 30-day period or one million messages in any one-year period, if those messages are unsolicited and use a computer network with the intent to falsify or forge transmission information or other touting information.

Defendants Jeremy Jaynes, Richard Rutowski and Jessica DeGroot argued that the Virginia law violated free speech provisions of the First Amendment, due process protection of the Fourteenth Amendment, the Fifth Amendment's guaranty against double jeopardy and the Commerce Clause of the Constitution. Among other things, defendants argued that the Constitution protects anonymous speech and the Virginia statute abridged this right.

However, the trial court, Judge Horne of the Loudoun County Circuit Court, disagreed with the defendant's contentions. He based much of his decision on the fact that, unlike the offending statutes underlying much of the case law cited by defendants, the Virginia anti-spam law was content neutral and only addressed intentionally false speech.

The court held that the spam legislation at issue "is concerned with the volume of transmissions", not what content is stated within the transmissions. Therefore, it cannot be successfully challenged on the most common grounds for addressing restrictions of free speech.

In addition, the court noted that "Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published . . . should enjoy like immunity." The government has much more power to regulate deliberate lies than even mistaken statements made with honest intent.

If convicted, the defendants could serve prison time of one to five years for each violation of the law, and lose to the state profits, computer equipment or other property used in the crimes.