Virginia Court OKs Anonymous Spam

Or "Frea Speach," as spammers write with their notoriously bad spelling while yammering about their right to send spam. There is no right to send spam, of course, let alone anonymously. Almost a decade ago, in their decisions in AOL vs. Cyberpromo and Earthlink vs. Cyberpromo, U.S. courts of appeal ruled that spam is theft of service and trespass to chattels, both of which are civil offenses. And of course the U.S. CAN-SPAM law remains in effect, for what that's worth.

So, it came as a surprise when the Commonwealth of Virginia superior court overturned the Loudoun County appellate court's guilty verdict against equine porn spammer Jeremy Jaynes (AKA Gaven Stubberfield; ironically Jaynes remained anonymous for years during his spamming). Spamhaus questions the Virginia court's opinion. Our understanding is that sound trucks cannot drive around neighborhoods blasting amplified announcements, nor can pirate radio stations flood the airwaves with broadcasts of any content, nor can anyone but the USPS stuff printed material into post boxes, nor is graffiti nor leafletting car parks acceptable. None of those minor restrictions appear to infringe on citizen's ability to express themselves freely. Why the court would deny basic protections for ISP servers and bandwidth escapes us, but apparently it was due to the technicality of not specifying commercial speech.

The judge's reasoning is based on the U.S. Constitution's First Amendment right of freedom of the press. He says:

[The law] 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."

(Publius was an anonymous hero of the American Rebellion.)

So, the judge's concern seems to be over the ability to send anonymous non-commercial e-mail, possibly in bulk. But here's what he said about anonymity earlier in his decision:

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.

Ignoring the nit that falsifying the delivery IP in an SMTP transaction would require hackery which itself would be blatantly illicit (BGP hijack), the judge appears to be claiming that one must forge a domain or e-mail address belonging to someone else in order to be anonymous, and that's simply wrong. Forgery isn't the only option; one could as easily use any number of other methods to conceal one's identity in an e-mail message. Even if forging domain names were required (which it is not), we have a hard time thinking that the First Amendment was intended to permit anonymous speech to implicate someone else (as Jaynes did). Prohibiting forgery in no way prohibits anonymity.

Time will tell if the Virginia Attorney General further appeals that case to the Supreme Court of the United States.

Considering that the vast majority of spam--over 90%--is already criminal due to its delivery via botnets, and that ISPs in the U.S. already are explicitly permitted to make spam-blocking decisions without recourse by the sender, Spamhaus expects that this decision will have no noticeable effect on most inboxes. It will, though, make it that much tougher and less likely to stop the marginal bulk mailers who try to slide between the outright botnet criminals and legitimate bulk e-mailers, and thus harder to throw the incorrigible bad players into jail. At the same time, legitimate bulk e-mail will be that much harder to deliver as ISPs tighten spam filters to keep out those who could have been prosecuted to stop spamming.

Overall the decision is bad for e-mail as a communication medium, bad for consumers who don't want junk in their inbox, bad for ISPs who have to pay to receive such junk, and even bad for legitimate bulk e-mail senders who are trying to do the right thing, Confirmed Opt In bulk e-mail. It might appear to be good for politicians wishing a free bite of each inbox, but most pols have already learned that in the communication age, recipients can bite back. Even Publius would be better off using a method more reputable and reliable than spam to deliver her message, perhaps a website.

31 March 2009: The Supreme Court of the United States declines to hear the appeal, leaving as final the Virginia Supreme Court's decision invalidating the law. 1, 2, 3, 4

Jaynes continues to serve 42 months in federal prison on an unrelated securities fraud conviction.