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Spammer’s nine-year sentence upheld

A divided Supreme Court of Virginia has affirmed the computer crime conviction and nine-year prison sentence of a North Carolina man who sent mass quantities of spam – unsolicited bulk e-mail – through AOL servers in Northern Virginia.

Defendant Jeremy Jaynes of Raleigh was considered among the top 10 spammers in the world when he was charged in 2003 in the nation’s first felony prosecution against illegal spamming.

A Loudoun County jury convicted him of three counts of violating the Virginia Computer Crimes Act for spamming AOL users with offers to sell products such as a “Penny Stock Picker,” a “History Eraser” and a FedEx refund claim.

The state high court upheld the conviction today in Jaynes v. Commonwealth. The majority opinion by Justice G. Steven Agee rejected the notion that Jaynes, whose conduct clearly was criminal under the statute, had standing to challenge the statute on First Amendment grounds that might cover other kinds of protected speech.

Agee said a criminal defendant such as Jaynes could not invoke First Amendment protections for some hypothetical defendant not charged with a crime in order to win a “Get Out of Jail Free” card in his own case.

But three dissenting justices said the court’s precedent granted Jaynes standing, and the statute is “unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails,” including political, religious or other speech protected by the First Amendment.

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