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Yes you can spam — politically speaking

by Andrew O'Halloran, Chief Privacy Officer

Yes, the Virginia Supreme Court says you can spam anonymously.

In 2004, Jeremy Jaynes became the first spammer to be convicted of sending SPAM under Virginia’s anti-SPAM law. He was sentenced to 9 years in prison. After a lengthy series of appeals and two reviews by the Virginia Supreme Court, his conviction was overturned as being unconstitutional.

Oddly enough, (and I am very surprised) that Virginia Supreme Court’s decision has not generated more news coverage – it has many interesting ramifications. While there are too many to bring up and to discuss here, I will touch on the most common concern that I get asked about this court ruling:

“What does this mean for CAN-SPAM? “

My answer: Nothing!

Let me explain… first, remember, the US Federal CAN-SPAM Act applies only to commercial-related messages. In other words, political, religious, and other “freedom of speech” categories of messages are exempt from CAN-SPAM. The Virginia Computer Crimes Act, by contrast, was NOT constrained to only commercial messages. Instead, the Virginia act was written so broad to include all categories of electronic messages, including political and religious.

So why did the case get overturned?

Simple – the First Amendment which protects freedom of religious and political speech and the right to exercise this speech anonymously. The word “anonymous” was interpreted by the court to include “falsifying header information” or “forging routing information”.

The ruling

The Virginia Supreme Court had to find constitutional defects in the Virginia Computer Crimes Law because it was in conflict with the First Amendment:

“That statute is unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails including those containing political, religious or other speech protected by the First Amendment to the United States Constitution.

And, because the Court had to protect everyone’s First Amendment right by striking down the law, it had no choice but to also let Jaynes off the hook. Even people who do bad things cannot be convicted under a law that is unconstitutional.

Fortunately, because of its focus on commercial-related electronic messages, CAN-SPAM does not have the constitutional problem and is here to stay.

Don’t confuse ‘minimum standard’ with ‘best practice’

There are still many emailers that still think as long as they are following CAN-SPAM guidelines, then they must doing everything right. Right according to the law perhaps, but the issues brought up in the “Jaynes vs. Virginia” case illustrate that achieving good email results and good deliverability can also be complex and is dependent on many factors, some of which are quite subtle. Doing “the minimum” might work with the law, but it doesn’t work when it comes to getting good email results.

I think Jaynes got lucky because there was hole in the law, but there is no luck when it comes to deliverability. You either are doing the right things or not – simple as that.

This entry was posted on Thursday, October 23rd, 2008 at 1:23 pm

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