Virginia's first spam criminal conviction upheld

In Jaynes v. Com., the Virginia Court of Appeals in an opinion by Judge Benton, joined by Senior Judges Baumgardner and Fitzpatrick, upheld the conviction under Va. Code § 18.2-152.3:1 of big-time spammer Jeremy Jaynes, rejecting various constitutional challenges to the validity of the statute.

The statute provides, in relevant part:

A. Any person who:
1. Uses a computer or computer 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; or
...
B. A person is guilty of a Class 6 felony if he commits a violation of subsection A and:
1. The volume of UBE transmitted exceeded 10,000 attempted recipients in any 24-hour period, 100,000 attempted recipients in any 30-day time period, or one million attempted recipients in any one-year time period; or
...

The undisputed facts of the case were these:

"Appellant used computers in his home in North Carolina to send over ten thousand e-mails, on each of three different days, to subscribers of AOL, an ISP that provides e-mail accounts as part of its service. That AOL’s servers are located in Loudoun County, Virginia, is not challenged.

On July 16, 2003, appellant sent 12,197 pieces of unsolicted bulk e-mail with falsified routing and transmission information onto AOL’s proprietary network. On July 19, he sent another 24,172 similarly falsified e-mails, and he followed on July 26 with an additional 19,104. Each message targeted an AOL subscriber. That the sender knew each proposed recipient was an AOL subscriber was clear because the e-mail addresses of all recipients ended in “@aol.com.” The messages advertised one of three products: either a FedEx claims product, a stock picker, or a “history eraser.” To purchase one of these products, potential buyers would “click” on a hyperlink within the e-mail which redirected them to a website. Notably, this redirection led to thousands of different websites, rather than a single one, to consummate the purchase.

Among those items seized during a search of appellant’s home were compact discs (CDs) containing both user names and full e-mail addresses.3 The CDs contained at least 176 million full e-mail addresses and over 1.3 billion user names. Appellant also possessed a DVD containing not only AOL e-mail addresses, but also other personal and private account information for millions of AOL users. Finally, police collected multiple “zip discs” (another type of data storage device) containing 107 million AOL e-mail addresses. All of the AOL user names, e-mail addresses, and account information were stolen and illegally in appellant’s possession.

In this case, appellant employed exactly those spammer tactics outlined in Part II, supra, of this opinion. He used thousands of different IP addresses and hello domains to send tens of thousands of e-mails and avoid detection by AOL’s network. Each e-mail advertised a commercial product; none contained any content that was personal, political, religious, or otherwise non-commercial. To aid his deception, appellant registered numerous different domain names using false contact information through Network Solutions, whose offices are located in Virginia. The contracts between appellant and Network Solutions require that appellant provide accurate contact information, update contact information when it changes, and submit to jurisdiction in Virginia for resolution of any contract disputes between appellant and Network Solutions."

Rejecting the defendant's jurisdictional argument, the Court concluded that: "criminal jurisdiction may lie where AOL’s servers are located because it is the trespass upon those servers that constitutes the offense." The Court also noted: "with respect to intent, appellant cannot challenge that he purposely intended his e-mails to pass through AOL’s servers because the address of every intended recipient in this case ends in “@aol.com.” Necessarily, if the e-mail is transmitted to the intended recipient, it must pass through AOL’s servers."

The Court went on to reject the defendant's First Amendment, dormant Commerce Clause, and Due Process arguments.

The AG's office had this to day about the case:

"Attorney General Bob McDonnell today announced that the Virginia Court of Appeals has affirmed Virginia’s Anti-Spam Act and rejected the appeal of convicted spammer Jeremy Jaynes. A jury in the Loudoun County Circuit Court convicted Jaynes on three counts of violating Virginia’s Anti-Spam Act in November 2004. This marked the first ever felony conviction in a SPAM case, and the case received international attention. After convicting the defendant, the same jury sentenced him to serve nine years in jail. The defendant has been seeking to overturn that conviction on appeal. Based on today’s decision, the Commonwealth will immediately ask the trial judge to lift the suspension of Jaynes’ prison sentence and order him to begin serving his 9 year sentence

Speaking about the ruling, Attorney General McDonnell remarked, “SPAM costs Virginia citizens and businesses thousands of dollars every year in lost time and resources. 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.”

McDonnell continued, “I applaud our Computer Crime Unit for their work in prosecuting this case, and my predecessor Jerry Kilgore for his leadership in getting this legislation passed and the initial conviction secured. The Office of the Attorney General of Virginia will continue to lead the nation in prosecuting online criminals, and keeping the Internet safe and secure.”

Jeremy D. Jaynes was regarded as the eighth-worst Spammer in the world on The Spamhaus Project’s Registry of Known Spammer Organizations at the time of his arrest. At the time, prosecutors from the Attorney General’s Computer Crime Unit argued to the jury that Jaynes peddled his products to unsuspecting victims from around the world. His global fraud resulted in millions of dollars for him as well as a mansion and a number of homes in Raleigh, North Carolina."