BEATING THE DEAD FIRST AMENDMENT HORSE? NOT QUITE

A Virginia appellate court handed down a decision resolving jurisdictional and First Amendment challenges to Virginia’s criminal spam statute (18.2-152.3.1).  The case (link to .pdf version of opinion here) is captioned Jaynes v. Commonwealth, ____S.E.2d ___, 2006 WL 2527678 (Va. App., Sept. 5, 2006) (and thanks to Internetcases for the pointer).  I agree with the prevailing wisdom that it’s folly to use a First Amendment argument in a spam case.  This case is the exception. [You can access the state’s brief at this page (scroll down for a .pdf version) and the ACLU’s amicus brief here [.pdf].] 


The Statute

The statute criminalizes use of a computer or network with the intent to falsify or forge electronic mail transmission information or other routing information in connection with the transmission of unsolicited bulk email “through or into the computer network of an electronic mail service provider or its subscribers.”

Jurisdiction

Defendant, who was located in North Carolina, sent over fifty thousand pieces of email in three days to AOL subscribers.  A search of Defendant’s home revealed caches of DVDs containing email addresses and private AOL account information.  (One wonders how Defendant obtained this information from AOL, and whether possible liability attaches to AOL for failing to safeguard this information.)

Defendant raised the timeworn argument that he could not be subject to jurisdiction in Virginia because “he could not control the pathways his messages took.”  This is probably not the model case for this argument.  With the caveat that I don’t know whether personal jurisdiction rules vary in the civil versus criminal context, if this was a civil case, it would not have been colorable to bring a jurisdictional argument.  As expected, the court (citing Ralsky and other authority) rejects this argument.  

First Amendment Right to Anonymous Speech

In the first of two First Amendment arguments, Defendant argued that the statute violated the First Amendment because it proscribed the sending of anonymous emails.  A quick piece of First Amendment background.  The Supreme Court has struck down laws requiring identification of pamphleteers.  Supreme Court decisions recognizing the right to political anonymous speech cite to a long tradition of support for the right to engage in anonymous political speech.  This has been construed by some courts to include the right to post anonymously on the internet.  The ACLU took the position that the right to send anonymous non-commercial emails was the natural extension of this right.  So far, so good.  What seems awkward about the ACLU position is that the ACLU argued that any time someone sent an anonymous email, it was necessary to somehow alter (forge) the existing transmission path/routinginformation.  This does not sound correct to me (although I'm not 100% clear on how such services work), and the ACLU certainly didn’t cite any factual authority for this proposition.  

The court rejects this First Amendment argument on somewhat awkward premises.  But before getting to the court’s treatment of this issue it’s worth noting two things.  First, the statute is not restricted to commercial speech.  To the extent the statute is interpreted to cover political, religious or other non-commercial content, it certainly presents more of a First Amendment problem.  Second (and this is related to the first point) the statute covers “falsification” or “forgery” of transmission information.  Other statutes (such as the Washington statute) are broader and include “obfuscation” or “obscuration” of transmission path as a basis for liability.  (I think this type of a statute, to the extent it applies to non-commercial messages, would be a better candidate for a First Amendment challenge.) Because the statute only covered falsification and forgery it had a nice First Amendment out.  Note, however: the fact that the statute only requires an “intent to falsify or forge” could be problematic.  

The court’s analysis relies almost exclusively on the fact that spamming can be likened to trespass – “trespassing on private computer networks through intentional misrepresentation, an activity that merits no First Amendment protection.”  There are several problems with this line of analysis.  An easier route would be to say that altering transmission path information is like forging a postage stamp.  It probably does not cause any First Amendment problems to prohibit messages (whether commercial or non-commercial) sent in envelopes containing forged postage.  There are non-content-related reasons for this sort of a rule.  The postage stamp analogy has its own flaws.   Only companies and entities with filtering software use the routing information.  And it's not clear that every recipient of email uses the routing information to filter (or does in the same way).  The average person can receive mail with altered routing information and not know the difference.  The routing information is not necessarily the same as the “from line.”  In fact the statute is not clear on whether the routing information includes the from line.  But that is neither here nor there.  The big problem with bringing trespass into the equation is that trespass allows the ISP to control the acceptable bounds of access (and speech).  This could represent an improper delegation of the appropriate standard for expression to the ISP and more importantly result in a moving target.  Taken to its extreme, this analysis – allowing an ISP to determine what speech is permitted through trespass which requires a violation of terms of service (all of which vary by ISP and person or entity) –  could very well cause some First Amendment problems.  The easier and safer analysis would be to focus on the fraud and foregery involved and not so much on the rights of the ISPs.

Vagueness

Defendant also challenged the statute on vagueness grounds.  The court first concludes that because defendant was not engaging in any protected activity, no First Amendment interests are implicated.  (The court then engages in an “as applied” analysis and I don't know off-hand whether this is appropriate.)

While defendant challenged several words or phrases employed by the statute, his strongest challenges was to the term “bulk.”  The statute contained no definition of this term, only providing that where the volume of emails exceeded 10,000 in a 24 hour period (or 100,000 in a 30-day time period) the sender was guilty of a Class 6 felony.  To be clear, the statute contains no definition of bulk, but classifies the crime as a Class 1 misdemeanor as a default, but provides for Class 6 felony classification if the above thresholds are met.  So under the statute, what does bulk mean?  If I’m reading the statute correctly, any number more than one.

The statute overall is extremely awkward.  After a quick read, one is not sure whether it is a computer fraud and abuse act style statute, or one aimed purely at the transmission of misleading emails.  Also, the statute does not seem to define “electronic transmission information or other routing information”.  Does this include the from line?  Is this information visible to the average reader?  Does the statute cover the use of open proxy relays?  Does it cover deception aimed at ISPs or their end users?  These are definitions that are critical to spammers everywhere!    

*   *   *   *   *


Ultimately the court made quick work of defendant’s jurisdictional and commerce clause arguments.  It spent a bit more time on the First Amendment issue.  Again, I don’t think First Amendment challenges to spam statutes are a very good idea.  This case may be the exception, with a broad, vague, and poorly worded statute.  The ACLU’s amicus brief contains food for thought.  Can a statute prohibit encrypted/anonymous non-commercial messages?  Is an email or a link more amenable to on-line pamphleteering (and political speech) in a way that faxes and phone calls are not?  Is a First Amendment challenge to a law regulating unsolicited messages more viable in the email, rather than in the fax/mail context?

I would guess the decision will be further appealed.  In the meantime, as always, sender beware!
 
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