Spammer's conviction upheld
Three-judge panel also ruled the state's three-year-old anti-spam law constitutional
BY MICHAEL HARDY
TIMES-DISPATCH STAFF WRITER Sep 6, 2006
THE CASE In November 2004, Jeremy Jaynes was convicted of violating the unsolicited bulk electronic mail provisions of the state's Computer Crimes Act. Authorities confiscated compact discs containing at least 176 million e-mail addresses and more than 1.3 billion user names. Investigators estimated that he dumped 10 million e-mails a day
In the first case of its kind, the Virginia Court of Appeals has upheld the felony conviction of a North Carolina spammer who made a bundle off illegally peddling his products worldwide through the AOL network.
The three-judge panel also upheld the constitutionality of the three-year-old Virginia Computer Crimes Act against the challenge by Jeremy Jaynes, 30. In November 2004, a Loudoun County jury convicted him of three counts of violating the law's unsolicited bulk electronic mail provisions. He was sentenced to nine years in prison.
Jaynes used computers in his home in North Carolina -- he also owned a mansion and homes in Raleigh -- on three days in July 2003 to send almost 46,500 e-mails with falsified routing and transmission information through AOL's network. Its servers are in Loudoun County.
Investigators confiscated compact discs from Jaynes' home containing at least 176 million e-mail addresses and more than 1.3 billion user names. It also seized a DVD containing stolen e-mail addresses on AOL and personal and private account information for millions of AOL users. Investigators estimated that he dumped 10 million e-mails a day.
The appellate panel rejected several contentions by Jaynes in which he argued, among other things, that Virginia's law is unconstitutionally vague and violated the First Amendment guarantee of free speech.
"The statute does not prevent anonymous speech, as appellant argues, but pro- hibits trespassing on private computer networks through intentional misrepresentation, an activity that merits no First Amendment protection," Judge James W. Haley Jr. wrote in the unanimous opinion.
"The First Amendment gives no one the right to trespass on the property of another," he wrote. "And if the Commonwealth can criminalize the trespass, then certainly it can criminalize falsification to facilitate it."
Thomas M. Wolf of Richmond, the lead attorney in the appeal, said he will appeal. He could ask the entire court to rehear the appeal or take the case to the Supreme Court of Virginia.
Wolf said he respectfully disagreed with the court's analysis.
"The U.S. Supreme Court decided long ago that Americans have the right to speak anonymously," Wolf said. "By threatening people throughout the country with a felony conviction for taking steps to remain completely anonymous in sending noncommercial e-mails, the Virginia statute chills free speech."
Attorney General Bob McDonnell yesterday said the state will immediately seek the imprisonment of Jaynes. He was once regarded as the eighth-worst spammer in the world.
"Spam costs Virginia citizens and businesses thousands of dollars every year in lost time and resources," said McDonnell, whose predecessor, Jerry W. Kilgore, pushed the anti-spam law and secured the conviction.
"Online fraud is a costly and serious crime," he said, arguing that the ruling "further protects the people of the commonwealth from identity thieves and cyber criminals."
J. Tucker Martin, the chief spokesman for the attorney general, said yesterday that Jaynes is now under house arrest in Loudoun pending the outcome of his appeal.
Jaynes' sister, Jessica DeGroot, was convicted in the spam scam, but the jury recommended a fine of only $7,500. A judge later threw out her conviction. Another defendant, Richard Rutkowski of Cary, N.C., was acquitted of charges in the case.
Contact staff writer Michael Hardy at mhardy@timesdispatch.com or (804) 649-6810.
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