Tuesday, March 04, 2008

A Spammer Is Convicted in Court (and Why That May Not Be Good)...

In the United States, it's illegal to send spam emails. I can't believe I'm about to say this, but as it turns out, that might actually be a bad idea.

David Chartier at the Ars Technica Newsdesk reports that Virginia's Supreme Court has upheld the first U.S. felony conviction for sending spam emails. The spammer, Jeremy Jaynes, was convicted nearly three years ago for sending about 10 million spam emails per day between July and August 2003. His lawyers appealed, but the court upheld the conviction this past Friday by a narrow vote of 4-3.

Here's what's at issue. The federal law that makes his prosecution possible is the CAN-SPAM Act of 2003. It states that unsolicited, bulk email messages can only be sent if they 1) include an option to unsubscribe, 2) have relevant, non-deceptive subject headers, and 3) provide the physical address of the sender, among other things.

It all sounds like it makes sense and is reasonable. In fact, despite some of the policy's flaws, I've been a supporter of CAN-SPAM in the past. The fact that since the law was passed in 2003 there have been absolutely ZERO convictions that have been adjudicated to completion, I always chalked up to poor enforcement provisions. But the criteria for what constituted spam appeared just and accurate.

However, Jaynes' lawyers put forth a terrific argument that "anonymous speech" has always been vital to a healthy democracy and thus is Constitutionally protected by the First Amendment. In the 4-3 verdict, Justice Elizabeth Lacy dissented that the anti-spam provision requiring identification of the publisher is "unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mail including those containing political, religious or other [protected] speech".

Although Jaynes was rightfully found guilty because of other illicit activities like peddling scam products and services, his lawyers make a good point. To legally require the identification and physical address of a sender, or publisher, would unquestionably produce a chilling effect on free speech, and completely goes against over 200 years of Constitutional law. The law could be more narrowly tailored to exclude political and religious speech, but as it currently stands, it is indeed overbroad, and ought to be changed.


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