Intellectual Property Law

The Illegal Spamming Felony: Jurisdictional and Constitutional Questions

By Martha L. Arias

A recent decision from the Virginia Supreme Court affirmed the felony conviction of an illegal spammer under the Virginia criminal statute.  The Virginia Supreme Court held that the Virginia antispamming statute does not violate defendant's free speech rights.  Defendant had been indicated and convicted by the trial court of three counts under the Virginia Anti-Spam Act.  The Virginia Court of Appeals affirmed defendant"s conviction and 9-year prison sentence; afterward, defendant appealed to the Virginia Supreme Court which rendered its decision last Friday, February 29th.     This decision becomes the first decision from a state supreme court upholding the constitutionality of a state anti spam statute and addressing the key issue of jurisdiction for spam cases.

The fifty United State ("US") states have implemented anti-spam laws but few of them have faced constitutionality challenges before their state supreme court under the Commerce Clause and the First Amendment to the US Constitution.  For this reason, the Virginia Supreme Court sets legal precedent and, somehow, produces deterrence effects. 

Facts

Defendant was indicted and convicted by the trial court of violating Virginia Computer Crime Act ("VCCA"), unsolicited bulk electronic mail provisions, Code §§18.2-152:1, 18.2-152.3:1.  Note that these provisions are under chapter 5 titled "crimes against property."  

The above VCCA provisions state that any person who uses a computer or network "with the intent to falsify or forge electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers" is guilty of a felony if the transmission exceeds 10,000 in 24 hours; 100,000 in 30 days; or 1 million in one year. 

Defendant was accused of sending over 10,000 e-mails on each of three different days to subscribers of AOL (American Online).  The first day, defendant sent 12,197 unsolicited bulk e-mails with falsified routing; on another day, he sent 24,172 false e-mails; and the following week, defendant sent 19,104 e-mails.  The e-mails advertised three products and redirected users to different web-pages.   As it is known, spammers use false routing addresses to disguise their real identity and let their spam e-mails undetected by the service providers' anti-spam mechanisms.   This is called 'illegal spamming' and this is precisely what defendant used to avoid his e-mails to be detected as spam.  

Defendant replied to these charges by arguing that (i) the court lacked subject matter jurisdiction; (ii) the Virginia statute violated the First Amendment; (iii) the Virginia statute violated the Commerce Clause; and (iv) the statute was constitutionally vague. 

The trial court denied each of these arguments and sentenced defendant to 9 years in prison.  The court of appeals affirmed this decision.  Defendant appealed the Virginia Supreme Court and this court upheld the lower courts' rulings.

Jurisdiction

Defendant claimed the Virginia court lacked subject matter jurisdiction over defendant criminal case because he could not control the pathways his e-mails took before the e-mails were received by the intended recipient.  Defendant sent the e-mail from his home in North Carolina and AOL servers are physically located in Virginia.  

The court held that it had subject matter jurisdiction because AOL server was located in Virginia and Virginia courts had exclusive original jurisdiction over all felony indictments for "offenses committed within their respective circuits." Further, the court added: "a person may be charged in the place where the evil results, though he is beyond the jurisdiction when he starts the train of events of which the evil is the fruit." "Jurisdiction may exist where the immediate harm occurs, even if the criminal act does not physically occur there," the trial court said.  Even if defendant was located in other state and the recipients of the spam were also located in multiple jurisdictions, the e-mails had to pass through AOL's e-mail servers which all of them are under the jurisdiction of the trial court in Virginia.  E-mails must pass by the server provider server before they reach any final destination. 

Regarding the intent, the court held that defendant could not challenge the intent element because he knew the recipients of his e-mails were AOL subscribers.  Defendant was found disks with AOL e-mail addresses and they were the only recipients of his spam activity. 

First Amendment

The court held the Virginia Anti-spam Act does not violate the First Amendment because the statue does not regulate speech.  Instead, the statute and section at issue regulates "property."    The court analogized spam (and recognized this as a common interpretation among American courts) as a trespass to the private property of the ISP (Internet Service Provider).  Indeed, the trial court quoting the well known CompuServe case said:

"High volumes of junk e-mail devour computer processing and storage capacity, slow down data transfer between computers over the Internet by congesting the electronic paths though which the messages travel, and cause recipients to spend time and money wading through messages that they do not want. It is ironic that if defendants were to prevail on their First Amendment arguments, the viability of electronic mail as an effective means of communication for the rest of society would be put at risk."

To support this proprietary argument, the court said that the ISP must invest more money and resources to attack spam and provide better customer service to their subscribers (it is believe AOL receives 7 to 10 complaints ?per day' regarding spam). Likewise, spam recipients are to spend more time sorting e-mails and deleting spam. 

The Dormant Commerce Clause

The US Constitution does not allow states to discriminate against interstate commerce.  Here, defendant argued the Virginia statute violated the Commerce Clause because it regulates transactions that take place ?outside' Virginia's jurisdiction (following his view that spam takes different pathways).  The trial court held that states courts have found interest in protecting residents and service providers from the cost of handling spam and some fraudulent or illegal content they sometimes present.   Thus, states have an interest in protecting the property interests of its citizens.  The trial court said anti-spam laws do not burden interstate commerce; instead, they facilitate it.

"Even assuming that the antispam laws do not significantly further the state's interest, it is hard to see how the antispam laws burden interstate commerce at all. ...Far from burdening commerce, the truthfulness requirement facilitates it by eliminating fraud and deception. Compliance with the various antispam statutes is easy compared to noncompliance, which requires the spammer to incur costs of forging, re-mailing, and the like."

Finally, the court added, Congress enacted Can-Spam, and accorded the states the right to regulate false and misleading e-mail transmissions. 15 U.S.C. 770(b)(1). "If Congress itself was satisfied that supplementary state legislation would impose no undue burden on interstate commerce, this Court can hardly presume to tell Congress it is wrong," the court noted.  

Full post as published by IBLS Internet Law Blog on March 04, 2008 (boomark / email).