Computer Forensics and Legal Technology Blog

In Jaynes v. Commonwealth of Virginia (slip opinion, Sept. 12, 2008), the Virginia Supreme Court overturned the conviction of North Carolina resident Jeremy Jaynes, who sent over 10,000 emails over a 24 hour period to subscribers of America Online using falsified header information and sender domain names.  None of the recipients had requested communication from Jaynes. Jaynes was charged with violating Virginia’s anti-spam law, which prohibits sending unsolicited bulk emails (UBEs) with false email transmission information.  The anti-spam law also raises the offense to a felony if the volume of UBEs is greater than 10,000 attempted recipients in any 24 hour period.  The court held that, while the lower court had jurisdiction over him because the emails went through AOL’s servers in Virginia, the law was unconstitutionally overbroad.  The right to engage in anonymous speech is an aspect of the freedom of speech protected by the First Amendment, and the only way a speaker can publish an anonymous email is to use a false IP address or domain name.  Therefore, by prohibiting false routing information, the anti-spam law infringes on the right to engage in anonymous speech, which the U.S. Supreme Court has held to be a direct regulation of the content of speech.  In its analysis, the court suggested that had the statute been limited to commercial or fraudulent transmission of email or transmission of illegal or otherwise unprotected speech, the statute may have been constitutional.  However, as written, the statute prohibits the anonymous transmission of all UBEs, even those containing political, religious, or other speech protected by the First Amendment, and was therefore impermissably broad.