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Anonymous Speech in Email Upheld in Spammer Case - Updated
Saturday, September 13 2008 @ 09:42 AM EDT

I wanted to highlight for you in a ruling in a spammer case, Jeremy Jaynes v. Commonwealth of Virginia just decided by the Virginia Supreme Court, which struck down Virginia's anti-spam law as unconstitutional. Since the headlines about this story, such as this one in the Washington Post, Virginia AntiSpam Law Overturned, Spammer Walks, naturally point out that a notorious spammer has avoided jail time as a result, I wanted to make sure you understood the why of it.

You can read the entire decision here as text [here's the PDF]. I'll highlight the part that matters most. It's a matter of free speech, not because the law should allow spamming, but because the law in Virginia, unlike federal and other state laws, was found to be overbroad, since it blocked religious and political speech too. Virginia's legislature can fix that problem, but a judge can't substantively rewrite laws to make them constitutional. At issue in the case was false headers in emails, and the court significantly decided that the way email works, providing IP addresses and domain name information makes anonymous email impossible, so banning false routing information without narrowing the scope would end up banning constitutionally protected speech as well:

For example, were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute.

Here's a longer excerpt, so you can understand why, despite the Washington Post's disturbing headline, the court of appeals struck down the Virginia statute as unconstitutional, and I've provided links to the cases cited, for your convenience:
As shown by the record, because e-mail transmission protocol requires entry of an IP address and domain name for the sender, the only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name. Therefore, like the registration record on file in the mayor’s office identifying persons who chose to canvass private neighborhoods in Watchtower Bible & Tract Society v. Village of Stratton, 536 U.S. 150 (2002), registered IP addresses and domain names discoverable through searchable data bases and registration documents "necessarily result[] in a surrender of [the speaker’s] anonymity." 536 U.S. at 166. The right to engage in anonymous speech, particularly anonymous political or religious speech, is "an aspect of the freedom of speech protected by the First Amendment." McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995). By prohibiting false routing information in the dissemination of e-mails, Code § 18.2-152.3:1 infringes on that protected right. The Supreme Court has characterized regulations prohibiting such anonymous speech as "a direct regulation of the content of speech." Id. at 345.

State statutes that burden "core political speech," as this statute does, are presumptively invalid and subject to a strict scrutiny test. Under that test a statute will be deemed constitutional only if it is narrowly drawn to further a compelling state interest....

Many other states have regulated unsolicited bulk e-mail but, unlike Virginia, have restricted such regulation to commercial e-mails....

The United States Supreme Court recently reviewed the First Amendment overbreadth doctrine in United States v. Williams, 553 U.S. ___, 128 S.Ct. 1830 (2008). The Court noted [i]n order to maintain an appropriate balance, we have vigorously enforced the requirement that a statute’s overbreadth be substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep. . . . Applying that inquiry under Williams in this case is relatively straightforward as Code § 18.2-152.3:1 would prohibit all bulk e-mail containing anonymous political, religious, or other expressive speech. For example, were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute.

I've explained to you many times that the US legal system was founded on the idea that certain protections are to be guaranteed, even if it means a guilty person here and there gets away with something. The court knows that the legislature can fix the law by passing one now that is more narrowly tailored, and while this spammer is walking, the new law will catch him in the future, should he be so foolish as to repeat the offense.

The idea of the US Constitution is to make sure no one has the authority to pass laws that violate certain basic rights the founding fathers viewed as critical. If they pass them anyway, the courts can strike them down as unconstitutional. Freedom of speech is considered one of those vital rights, subject to certain limitations that you can read about in the ruling, as well as in the cases cited, if you wish to delve into this subject more deeply. For example, in the Williams decision, the rule stated is, "A statute is facially invalid if it prohibits a substantial amount of protected speech." The court isn't saying spamming is OK. It's saying that the law has to be more narrowly written to make sure it targets only spammers or other speech that isn't protected by the First Amendment. Think of it as saying that if your nets catch both sharks and dolphins, you have to fix it to catch only sharks.

I've never seen a case before where a court understood tech enough to realize that email headers could be an anonymous speech issue, and I found it fascinating and refreshing, despite how much I hate spam, and I thought you might find it of interest too. Also, sometimes people express the idea that anonymous speech is somehow smarmy. Not so, says the US Constitution. As you can see by this court's ruling, it's a fundamental American right. Here's the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Update: I see by some of your comments that the there is some confusion about antispam laws. The ruling isn't saying that you can't write laws against spam; nor is it saying that spam is protected by the First Amendment. In fact, the court took the time to list the federal law, CAN-SPAM, and other state antispam laws that are constitutional:

There is no dispute that Code § 18.2-152.3:1 was enacted to control the transmission of unsolicited commercial bulk e-mail, generally referred to as SPAM. In enacting the federal CAN-SPAM Act, Congress stated that commercial bulk e-mail threatened the efficiency and convenience of e-mail. 15 U.S.C. § 7701(a)(2). Many other states have regulated unsolicited bulk e-mail but, unlike Virginia, have restricted such regulation to commercial e-mails. See e.g., Ariz. Rev. Stat. § 44-1372.01; Ark. Code Ann. § 4-88-603; Cal. Bus. & Prof. Code § 17538.45; Fla. Stat. § 668.603; Idaho Code § 48-603E; Ill. Comp. Stat., tit. 815 § 511/10; Ind. Code § 24-5-22-7; Kan. Stat. Ann. § 50-6, Md. Code Ann., Commercial Law § 14-3002. There is nothing in the record or arguments of the parties, however, suggesting that unsolicited non-commercial bulk e-mails were the target of this legislation, caused increased costs to the Internet service providers, or were otherwise a focus of the problem sought to be addressed by the General Assembly through its enactment of Code § 18.2-152.3:1.

Jaynes does not contest the Commonwealth’s interest in controlling unsolicited commercial bulk e-mail as well as fraudulent or otherwise illegal e-mail. Nevertheless, Code § 18.2-152.3:1 is not limited to instances of commercial or fraudulent transmission of e-mail, nor is it restricted to transmission of illegal or otherwise unprotected speech such as pornography or defamation speech. Therefore, viewed under the strict scrutiny standard, Code § 18.2-152.3:1 is not narrowly tailored to protect the compelling interests advanced by the Commonwealth.

All Virginia legislators need to do is fix the language to match some other states, and presumably then the antispam law would pass the strict scrutiny standard.

If you'd like to compare the laws, you can easily do so. Just plug in the statutes referenced in the order, and compare the language. For example, if you plug in:

Md. Code Ann., Commercial Law § 14-3002
you get the link to the Maryland statute. Its antispam law reads like this:
(a) This section does not apply to an interactive computer service provider or a telecommunication utility to the extent that the interactive computer service provider or the telecommunication utility merely handles, retransmits, or carries a transmission of commercial electronic mail.

(b) A person may not initiate the transmission, conspire with another person to initiate the transmission, or assist in the transmission of commercial electronic mail that:

(1) Is from a computer in the State or is sent to an electronic mail address that the sender knows or should have known is held by a resident of the State; and

(2) (i) Uses a third party's Internet domain name or electronic mail address without the permission of the third party;

(ii) Contains false or misleading information about the origin or the transmission path of the commercial electronic mail; or

(iii) Contains false or misleading information in the subject line that has the capacity, tendency, or effect of deceiving the recipient.

(c) A person is presumed to know that the intended recipient of commercial electronic mail is a resident of the State if the information is available on request from the registrant of the Internet domain name contained in the recipient's electronic mail address. (d) An interactive computer service provider:
(1) May block the receipt or transmission through its interactive computer service of commercial electronic mail that it reasonably believes is or will be sent in apparent violation of this section; and

(2) May not be held liable for an action under item (1) of this subsection that is voluntarily taken in good faith.

I put in the highlighting. Notice the Maryland law carefully limits the law's breadth to *commercial* unsolicited bulk email? Now let's look at Virginia's language in the statute that was just found to be unconstitutional, as quoted in the ruling:

A. Any person who:
1. Uses a computer or computer network with the intent to falsify or forge electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers . . . is guilty of a Class 1 misdemeanor.
B. A person is guilty of a Class 6 felony if he commits a violation of subsection A and:
1. The volume of UBE transmitted exceeded 10,000 attempted recipients in any 24-hour period, 100,000 attempted recipients in any 30-day time period, or one million attempted recipients in any one-year time period. . . .

Do you see the difference? *Any person* means you, if you send out an email to someone you don't know with false routing information. If you are a political person and you wish to comment on an issue that is controversial, you might send out email on the subject to people you don't know, hoping to influence them, and if you are afraid of repercussions from those who do not bind themselves by law, you might use false headers as one way to try to be anonymous.

Should that be a crime? This court said that since there is no other way to be anonymous in email (I know geeks might have a longer list), it can't be criminalized as the Virginia statute does, since anonymous speech in religious or political areas is protected by the First Amendment. You have to limit the law's reach to commercial speech.

See why the court pointed out that by not limiting the law to commercial speech, it would be illegal for the authors of the Federalist Papers -- if they lived now instead of back then -- to send it out anonymously by email, meaning with false headers? Not only that, but if they sent it out in sufficient quantity, it would be a felony no less.

Well, the court has read the US Constitution and the Bill of Rights. It understands that the First Amendment doesn't give states or the federal government the right or authority to write a law that has that kind of effect. So the court said that if Virginia wants an antispam law, they need to come up with one that is more carefully written.

Some of you will protest that you don't want the Federalist Papers either, because they're long and you have to pay for receiving it. You have self-help ways to block email you don't wish to receive. The founding fathers were concerned about limiting political speech, because they had seen in real life back in Europe what happens when governments get to decide what kind of speech is allowed and what isn't, so they came up with protections to keep the US a place where you are allowed to speak your mind about political and religious topics without being called a criminal. And if you wish to speak anonymously, as the authors of the Federalist Papers pragmatically decided would be wise, you can do so. That has always been the law in the US; all this ruling did is apply that principle to email.

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