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RICHMOND--The Virginia Court of Appeals yesterday upheld the nation's first conviction under an anti-spam law.
The court rejected an appeal by Jeremy Jaynes, who was convicted in 2004 in Loudoun County of violating Virginia's anti-spam law, the nation's most restrictive law against Internet spam e-mails.
Jaynes, a North Carolina resident who was considered the eighth worst spammer in the world by Spamhaus, a spammer monitoring group, was accused of hiding and falsifying routing and domain information to send hundreds of thousands of unwanted e-mails.
Virginia's law allows for the sending of unsolicited bulk e-mail, but makes it a crime for senders to hide their identities if they're sending more than 10,000 pieces of e-mail in a single 24-hour period, or 100,000 in a 30-day period.
Evidence from his original trial showed that Jaynes had sent more than 12,000 unsolicited e-mails on a single day in July 2003--right after Virginia's law took effect--and more than that on two other days that month. He had also gone to lengths to hide the origin of those e-mails.
A Loudoun County jury had convicted Jaynes of three counts of spamming, and sentenced him to nine years in jail. He was the first person in the nation convicted of a felony for sending spam e-mails.
Jaynes had appealed, on the basis that Virginia's law was a violation of the First Amendment, and that the trial court lacked jurisdiction because his e-mail messages went through numerous servers and routers.
His attorneys also complained that nine years was too long of a sentence, given that Jaynes was an out-of-state resident and the law had taken effect just two weeks before his illegal actions.
Also filing briefs on behalf of the defendant were the Rutherford Institute and the American Civil Liberties Union.
In rejecting Jaynes' appeal, the Court of Appeals opinion--written by Judge James Haley Jr. , a former Stafford County judge-- said that Virginia did have jurisdiction because the spam e-mails for which Jaynes was charged all went to AOL subscribers, and AOL's servers are in Virginia.
The court also rejected Jaynes' constitutional challenge, saying that while anonymous speech is protected by the First Amendment, Virginia's anti-spam law prohibits not the anonymity but the "trespassing on private computer networks through intentional misrepresentation, an activity that merits no First Amendment protection "
"The statute prohibits the falsification of the sender's routing and transmission information to gain access to a computer network that would otherwise be inaccessible. In short, the statute prohibits lying to commit a trespass."
The court also rejected several other arguments of Jaynes', including that the language in the Virginia Code was vague.
In short, Haley wrote, "Appellant's conduct is exactly the conduct the statute seeks to criminalize, and appellant intentionally undertook those acts."
Attorney General Bob McDonnell praised the Court of Appeals ruling, and said the state will ask the trial judge to order Jaynes to begin serving his nine-year sentence, which had been suspended while he appealed.
"Spam costs Virginia citizens and businesses thousands of dollars every year in lost time and resources," McDonnell said in a written release. "Online fraud is a costly and serious crime. Today's ruling reinforces Virginia's Anti-Spam Act, and further protects the people of the Commonwealth from identity thieves and cyber criminals."
Contacted by The Associated Press, Jaynes' attorney, Tom Wolf, declined to comment until he had time to evaluate the ruling.
The jury had also convicted Jaynes' sister, Jessica DeGroot, but recommended only a $7,500 fine. Her conviction was later dismissed by the judge. A third defendant, Richard Rutkowski of Cary, N.C., was acquitted.
To reach CHELYEN DAVIS:
Email: cdavis@freelancestar.com
