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Virginia Supreme Court Upholds First U.S. Spam Conviction

While the ruling might spur some agencies to more aggressively enforce spam legislation, security experts doubt that it will do much to deter cyber criminals.

In a groundbreaking decision, the Virginia Supreme Court upheld the nation's first felony spam conviction, reaffirming the fact that the First Amendment does not include spam. The decision was upheld by a narrow 4-3 vote.

Jeremy Jaynes, of Raleigh, N.C., was convicted on three counts after violating Virginia's 2003 Anti-Spam Act, which resulted in a nine-year prison sentence for sending more than 53,000 messages in just three days through an AOL server in Loudoun County, Va.

Jaynes is believed to have generated about $750,000 a month when he sent total of 10 million messages between July and August 2003. His global fraud activities allowed him to receive millions of dollars in profit, which he used to purchase several homes in the Raleigh, N.C. area, McDonnell said.

Jaynes was ultimately charged in Virginia because the AOL servers he used for sending spam were located in the state's Loundoun County.

"This is a historic victory in the fight against online crime," said Virginia Attorney General Bob McDonnell in a written statement. "Spam not only clogs e-mail inboxes and destroys productivity; it also defrauds citizens and threatens the online revolution that is so critical to Virginia's economic prosperity."

The Supreme Court rejected Jaynes' claim that the state law violates both the First Amendment and the federal Interstate Commerce Clause of the U.S. Consitution.

"As three justices pointed out in dissent, the majority's decision will have far reaching consequences. The statute criminalizes sending bulk anonymous e-mail, even for the purpose of petitioning the government or promoting religion," said Thomas M. Wolf, Jaynes' attorney, in an Associated Press report.

According to The Spamhaus Project's Registry of Known Spammer Organizations, Jaynes was regarded as the eighth most prolific spammer in the world at the time of his arrest.

The Raleigh, N.C. resident was first convicted in November 2004 after prosecutors successfully argued to a jury that he used AOL's private computer network for soliciting products to unsuspecting victims around the world. Jaynes' attorneys appealed the conviction, citing that the Virginia Computer Crimes Act was in direct violation of the federal Commerce Clause in the Constitution.

However, the Virginia Court of Appeals affirmed the constitutionality of the state's Anti-Spam Statute in September 2006, which enabled the Virginia Supreme Court to uphold the conviction Friday.

Virginia's Anti-Spam Act prohibits online scammers from sending unsolicited bulk e-mail by fraudulent or deceptive means, such as changing the headers or routing information to prevent recipients from determining the identity of the sender. Such conduct is punishable as a class 1 misdemeanor, or a class 6 felony, if the volume of spam exceeds 10,000 in any 24-hour time period, 100,000 in any 30-day timeframe, or a million messages within a year. Spamming also constitutes a felony if the total spam revenue transmitted to any ISP exceeds $50,000.

However, security experts maintain that while Friday's decision might set a legal precedent, it likely won't have a significant impact, if any, on the copious amount of spam in circulation.

"I don't think it's going to do much to deter (criminals). If anyone's a little concerned, all it will do is push people to move spam's origination offshore. A lot of it already is," said Anthony James, vice president of products for Fortinet. "In some cases, it raises the notoriety of spammers. It kind of makes them bigger than what they should be."

James said that the decision was beneficial in that it might encourage agencies to actively enforce statutes around the 2003 federal CAN SPAM Act. "It shows that spam is not tolerated," he said. "I'm pretty excited to see there was a prosecution. Agencies might go after the originators a little more aggressively."

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