Wednesday, September 06, 2006

On perpetuating stereotypes

Isn't this just the way you'd think a Massachusetts law school dean would view the federal judiciary?

Marcia, Marcia, Marcia

It says here that Marcia Oddi, whose Indiana Law Blog is one of my longtime favorites, will be recognized with the media award from the Indiana Judges Association.

Well done, I say.

Tuesday, September 05, 2006

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 “” 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 “” 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."

When the Procurement Act is no good

This commentary in the Cavalier Daily says that notwithstanding the preferences of two-thirds of the students voting in a referendum last year, the dining facilities at the University of Virginia sell Pepsi and not Coke because Pepsi was the low bidder and the University is bound by the provisions of the Procurement Act, "to award contracts to the firm that provides the best overall offer."

Now, that's horrible.

Judge Wilkinson of the Fourth Circuit opines against Virginia marriage amendment

Remarkably, today's Washington Post includes commentary from Judge J. Harvie Wilkinson III of the Fourth Circuit, expressing his views against the Virginia marriage amendment.

He begins by noting:

"Judges began the rush to constitutionalize. The Massachusetts Supreme Court concocted a state constitutional right to marry persons of the same sex. The court went on to say that opposing views lacked so much as a rational basis. In other words, centuries of common-law tradition, legislative sanction and human experience with marriage as a bond between one man and one woman were deemed by that court unworthy to the point of irrationality."

He concludes, however:

"Ordinary legislation -- not constitutional amendments -- should express the community's view that marriage "shall consist only of the union of a man and a woman." To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country's founding charter as their own. . . .

To constitutionalize matters of family law is to break with state traditions. The major changes in family law in the 19th and 20th centuries, such as the recognition of married women's property rights and the liberalization of divorce, occurred in most states at the statutory level. Even the infamous bans on interracial marriage were adopted nonconstitutionally by 35 states, and by constitutional amendment in only six.

Where is the threat that justifies so radical a break with our constitutional heritage? State courts in Georgia, New York and Washington have recently rejected invitations to follow Massachusetts and find a right to same-sex marriage in their constitutions. The great majority of state court judges -- more than 80 percent by some counts -- are subject to election in some form and unlikely to overturn state legislatures on so volatile a matter as same-sex marriage. States have numerous tools that enable them to reject objectionable marriages from other jurisdictions -- tools that have long been the basis for refusing to recognize marriages involving polygamy, incest, and underage or mentally incompetent parties."

Finally, he says:

"Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? In fact, the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics -- some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day's time and arena. It is sad that the state of James Madison and John Marshall will in all likelihood forsake their example of limited constitutionalism this fall. Their message is as clear today as it was at the founding: Leave constitutions alone."

Somewhere upstairs I have a book that includes a law review article co-written by Judge Wilkinson in which he concludes that there was no constitutional right to same-sex marriage.

Monday, September 04, 2006

Bragging on John Brownlee

The Charlottesville paper takes a look here at U.S. Attorney John Brownlee and likes what they see, or so it would appear.

When the Fridge coached at William & Mary

The Washington Post has this delightful article about the year that the big man who coaches the Maryland Terrapins was an assistant at William & Mary for the 1980 season, in advance of Saturday's game between the two schools.

In part, the article says this:

"The team practiced on the grounds of Eastern State Hospital, whose claim to fame is its standing as the nation's first public facility for the mentally ill. During workouts, Laycock said it wasn't uncommon for some of the residents to wander by and lend their input during Tribe practice.

"I wouldn't tell some of our coaches" about the hospital, Laycock said. "They'd see some guy standing there and think they were alumni or something."

Friedgen remembers one regular visitor in particular.

"There was this guy that used to come to my drills with a hat on," Friedgen said. "And he used to say 'Stay low! Stay low!' I said to them, 'Listen to the guy; he's telling you the right stuff.' He was probably some old coach. That's how I'll be someday.""

On the McLean pain doctor

In U.S. v. Hurwitz, the Fourth Circuit in an opinion by Judge Traxler, with District Judge Currie concurring, and with Judge Widener concurring in part and dissenting in part, reversed the convictions of Dr. William Hurwitz for overprescribing pain medication, remanding the case for a new trial.

In this story from the Connection newspapers, prosecutors vowed to retry the case, and the defendant's brother said of his prison life: "While in federal prison, Hurwitz has been learning Italian from a Sicilian prisoner and playing bass guitar in a band. He teaches GED classes to other prisoners and helps other inmates write letters to loved ones."

The coalfields as art

In Florida, a photographer has an exhibit of pictures from the coalfields of West Virginia:

"For three years Ken Light photographed the death of the coal industry and its culture in the struggling mining communities and former coal company towns of West Virginia. Extreme poverty, welfare dependence, major diseases like 'black lung'; a sense of hopelessness about lost jobs and lost heritage is haunting the country"s most impoverished state. This is the first complete showing of the Coal Hollow exhibition, with more than seventy of Ken Light's powerful photographs presented with accompanying oral histories and text by Melanie Light."

Some of the photos can be see at the photographer's website.

Sunday, September 03, 2006

A new Minor

In this crowd are Mom and Dad, Jamie and Frankie, Mack and Audrey, Janice and Ken, Carolyn and Charles, Lois and Tim, and Sam, on the occasion of the wedding of Ken and Janice yesterday.

A few of the readers of this blog have heard one or more tales about people in the group picture. Here is another of the bride and groom, at my parents' house.

I went to the party afterwards. A few tall tales were told in the short time I was there. One was told by Carolyn, who told of trying to chase down one her Brazilian nephews who spoke only Portuguese. Shouts of "stop, stop!" were to no effect. She was told the word in Portuguese was something like "pare" (pah-dee) and so she tried hollering that for a while before another woman there in the store told her to stop carrying on in such manner, the potty was right over there.