The Washington Post's Tom Jackman writes:
The ruling, arising from the Loudoun County criminal prosecution of Jeremy Jaynes of Raleigh, N.C., was also remarkable because the Supreme Court reversed itself: Just six months ago, the same court upheld the anti-spam law by a 4-3 margin. But Jaynes's attorneys asked the court to reconsider, typically a long shot in appellate law, and the court not only reconsidered but changed its mind.John Levine, president of the Coalition Against Unsolicited Commercial Email (CAUCE), said the court overturned the law because it sought to outlaw all forms of unsolicited e-mail, not just commercial junk mail. In contrast, he said, the federal CAN-SPAM Act limits the restriction to messages used to promote a business or other financial gain.
Jaynes was convicted in 2004 of sending tens of thousands of e-mails through America Online servers in Loudoun. He was the first person tried under the law, enacted in 2003, and Loudoun Circuit Court Judge Thomas D. Horne sentenced him to nine years in prison.
"Everyone agreed Jaynes was incredibly guilty, but the issue was the peculiarity of the Virginia law in that it could be read to apply to people who were sending junk e-mail but not quite as naughtily as Jaynes was doing it," Levine said. "In the United States, we have this ancient tradition where political and religious speech are very strongly protected, but the Virginia law applied equally to all speech, commercial or not."
A copy of the court's decision is available at this link here.
At least 38 states have laws regulating spam, according to the National Conference of State Legislatures. Levin said one reason anti-spam activists prefer suing spammers under state law is that the federal statute forces the plaintiff to pay the defendant's legal fees if the case is tossed out or decided in favor of the accused spammer.
Last year, a judge dismissed a junk e-mail lawsuit brought by serial anti-spam litigator James Gordon against e-mail marketer Virtumundo, ordering Gordon to pay Virtumundo $111,000 in legal fees and court costs.
Jon Praed, an attorney with the Arlington, Va., based Internet Law Group who has sued his share of spammers, lambasted the court's decision, saying it was akin to giving burglars the constitutional right to break into Virginia homes as long as they recite the Gettysburg Address while crossing the threshold.
"Every kindergartner learns the idea of keeping your hands to yourself," Praed said. "Does the Constitution really requires us all to post 'No Trespassing' signs on our homes -- or our mail servers -- to remind the world the dwelling isn't open to the public and the mail server is not a soapbox to be used and abused by anyone who thinks they have something to say?"
Levin said state lawmakers could easily fix the law simply by restricting the statute to commercial e-mail.
For his part, Virginia Attorney General Bob McDonnell said he intends to appeal the case to the U.S. Supreme Court.
"Today, the Supreme Court of Virginia has erroneously ruled that one has a right to deceptively enter somebody else's private property for purposes of distributing his unsolicited fraudulent emails. I respectfully but fervently disagree," McDonnell said in a written statement. "We will take this issue directly to the Supreme Court of the United States. The right of citizens to be free from unwanted fraudulent emails is one that I believe must be made secure."
Jaynes, who has been under house arrest in Loudoun since his conviction in 2004, could not be immediately reached for comment.
From : http://voices.washingtonpost.com/
