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Virginia Top Court to Re-Hear Spammer's Conviction
Posted by
ScuttleMonkey
on Fri May 02, 2008 03:23 PM
from the a-waffling-we-will-go dept.
from the a-waffling-we-will-go dept.
arbitraryaardvark writes "Mega-spammer Jeremy Jaynes was convicted in Virginia of spamming in '05, sentenced to 9 years, and lost his appeal, 4-3, at the Virgina Supreme Court. But the court has just ordered a new hearing on whether the anti-spam statute is unconstitutional under the First Amendment. Slashdot previously covered the appeal and the conviction."
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IT: Meet Millionaire Spammer Jeremy Jaynes 379 comments
prostoalex writes "Associated Press profiles Jeremy Jaynes, charged with sending out unsolicited e-mail messages, who just got a 9-year jail term recommendation from the state jury. With the help of 16 'high-speed' lines (Associated Press probably meant T1s) Jaynes would send out 10 million e-mails a day. His best month in terms of gross income netted him $750,000. Acccording to the article, 'In a typical month, prosecutors said during the trial, Jaynes might receive 10,000 to 17,000 credit card orders, thus making money on perhaps only one of every 30,000 e-mails he sent out. But he earned $40 a pop, and the undertaking was so vast that Jaynes could still pull in $400,000 to $750,000 a month, while spending perhaps $50,000 on bandwidth and other overhead, McGuire said. "When you're marketing to the world, there are enough idiots out there" who will be suckered in, McGuire said in an interview.'"
[+]
Court Finds Spamming Not Protected By Constitution 416 comments
eldavojohn writes "In a split (4-3) decision, a Virginia court has upheld the verdict against the spam king making it clear that spam is not protected by the U.S. Constitution's first amendment or even its interstate commerce clause. 'Prosecutors presented evidence of 53,000 illegal e-mails Jaynes sent over three days in July 2003. But authorities believe he was responsible for spewing 10 million e-mails a day in an enterprise that grossed up to $750,000 per month. Jaynes was charged in Virginia because the e-mails went through an AOL server in Loudoun County, where America Online is based. '"
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First Amendment covers ads? (Score:5, Interesting)
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Re:First Amendment covers ads? (Score:4, Informative)
The first amendment doesn't cover theft of resources, scamming, lies, shouting "fire" in a crowded theatre, etc.
The "theft of resources" was already dealt with by people who successfully sued for junk faxes. The first amendment doesn't apply.
The scamming and lies are covered by various legislation that requires truth in advertising.
The "shouting fire" was decided LONG ago ...
Hopefully, this is only going to appeal so that the guy wastes more $$$ and still gets the door slammed on his much-pounded-upon ass.
Parent
Re:First Amendment covers ads? (Score:5, Informative)
The appeal definitely won't go anywhere. Commercial speech is the least protected of all categories of speech and can be fairly thoroughly subjected to time, place, and manner restrictions. These, in turn, have a four-part test for their constitutionality:
Parent
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The people sending that junk mail pay to have it designed, pay to have it printed, pay to have it sent through the mail. In fact, if there weren't any junk mail, first class postage rates would be higher. This is the exact opposite of the spammer who does their best to make sure other people pay for the advertisements they send out. This is why junk mail is legal and spam isn't.
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The First Amendment is only a restriction on government power. It does not create any responsibilities on private citizens. The government may regulate postal junk mail, but there is no law regulating postal junk mail until the government writes one. Same for electronic spam: The First Amendment (probably) allows the government to regulate
Re:First Amendment covers ads? (Score:4, Interesting)
The first amendment doesn't cover theft of resources, scamming, lies, shouting "fire" in a crowded theatre, etc.
The "theft of resources" was already dealt with by people who successfully sued for junk faxes. The first amendment doesn't apply.
The scamming and lies are covered by various legislation that requires truth in advertising.
The "shouting fire" was decided LONG ago
The first amendment does cover ads. see discussion below of central hudson, see also 44 liquormart.
But this case isn't about ads. The first amendment covers lots of dangerous speech, lots of communication about illegal activities, lots of bad ads.
This is a case about whether the statute he was charged under is constitutional. If it's not, it's void and isn't law, and he can't be kept in jail under it, no matter how much we don't like the guy.
The shouting fire case was indeed decided long ago, 1919, schenck v united states. Schenck was put in jail for passing out pamphlets claiming that the draft was unconstitutional under the 13th Amendment. Personally, I think he was right.
The case was overruled in 1968 or 69 in Brandenburg. The reason Schenck is still the first case taught in First Amendment classes is that it was wrong.
Sometimes the theater really is on fire.
It's hard to write a statute that does what you want but stays within the first amendment.
It's easy to write a statute that bans spam, but also accidentally bans slashdot.
- arbitrary aardvark
Parent
The first amendment does cover ads (Score:3, Informative)
No, the First doesn't cover ads, see Free speech v commercial speech [stayfreemagazine.org]. After 1971 Supreme Court rulings whittled away at the separation of commercial speech and free speech. Whereas SC rulings before then maintained the separation. If that isn't enough, for instance if you don't accept that website, then try Findlaw [findlaw.com]. Julie Hilden [findlaw.com] writes that commercial speech should have the same First Amendment rights, rights it didn't have in 2001.
Falcon
Re: (Score:3, Insightful)
I don't mind spam as long as they stuck to not telling lies.
Most spam I see has one or more of the following lies:
1) False return address and sender (recently one of them used my email address as return address)
2) False Subject
3) False names
4) False content e.g. "Email me at xxxx@yyy only, because I am using my friend's email to write this"
When someone has to lie so much it should be pretty obvious they are doing something wrong, even they themselves kno
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See, the first amendment says that the government can't limit my speech. As a private property owner, however, you *can* limit my speech inasmuch as you have to pay for the forum. I'm free to buy my own house and spray-paint the side of it. But when I decide that someone else should foot the bill, that's not a free-speech issue.
Spammers cost other people millions of dollars, in aggregate. The only companies tha
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Re:First Amendment covers ads? (Score:4, Insightful)
However, in the case of spam, the spammer is forcing the recipient to pay for his speech without consent. That is why spam should be illegal, not because it's trying to sell something.
Parent
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Re:First Amendment covers ads? (Score:5, Informative)
"We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even 'good' ideas on an unwilling recipient. That we are often 'captives' outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere. The asserted right of a mailer, we repeat, stops at the outer boundary of every person's domain."
- Chief Justice Warren Burger, US Supreme Court, Rowan v US Post Office
Parent
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It would appear it has already been adequately covered by the SCOTUS, and the Virginia court is wasting everyone's time and money with yet another hearing.
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I am sorry for your inconvenience, but I think free speech is a little bit more important than that.
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Even aside from the monetary argument, someone else's right to free speech does not mean that I am required to listen, only that I don't have the right to gag him. No one has the right to come to my home , stand on my doorstep and shout out their opinions. Instead, they can feel free to shout
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And likewise in this case, you're combining those things to make something which is ultra offensive to many. You're using other people's resources to
Re:First Amendment covers ads? (Score:4, Insightful)
Parent
Re:First Amendment covers ads? (Score:5, Interesting)
A few years back I took a temp job for a law office with a network from hell(actually set up by a gamer,shudder!) and everyday I would walk to lunch. As I would walk to lunch there would be this guy on the street corner saying we would all go to hell if we didn't repent,and reading furiously passages out of his bible. Even though I am an agnostic I have absolutely no problem with him being there and would even put money in his cup,simply because he never touched anyone and I supported his right to speak his beliefs. What I would NOT have supported is him walking into my backroom every morning,plopping his ass down in fron of my monitor and FORCING me to deal with his crap every day.
Because in a very real sense that is EXACTLY what the spammer does. While I have never had the misfortune to be the email admin,I have known enough guys who were,and have seen first hand how much time they waste every damned day on garbage that flows like a sewer into their email servers. That is time they could be helping there fellow employees with problems,doing backups and upgrades,etc. Not to mention the bandwidth and the amount of money his employers spend on dealing with this junk. I have no problem with the spammer advertising his wares.I DO have a problem when he forces us all into unwanted expenses for the sake of his easy profits. And NO you can't say they "pay for their bandwidth" as most spam comes from botnets designed to force someone ELSE to fit the bill. That is why spam is so damned popular with scumbags. Somebody else gets the bills and the spammer gets the checks.
So while I am all for free speech I'm afraid that just like the *.A.A doesn't have the "right" to permanent profits neither IMO do spammers have the "right" to force their crap on me. But that is my 02c and you are free to ignore it. You also don't have to worry about me stuffing it in your mailbox if you do either,LOL!
Parent
Doesn't matter if it's ads. (Score:5, Insightful)
Basically, he got sent up the river for a hell of a lot of instances of extremely petty theft, which is as it should be. Let the fucker rot.
-jcr
Parent
MOD PARENT UP (Score:2)
Re:Doesn't matter if it's ads. (Score:5, Interesting)
Note that I said I wouldn't *mind* spam in these conditions. I'd be even happier to receive no ads, period, but as long as they have to pay their own way and not hide their identity then I figure it's not AS bad as what they do now. I *would* accept an inbox full of junk mail if it meant that acres of trees didn't have to die to keep my physical mailbox full of junk. I don't disagree with people who say "you have no right to be in my inbox, period"--I just don't personally feel as strongly. Marketing assholes will be marketing assholes until they're all exterminated; so we may as well give them a less-wasteful outlet for their bullshit.
Parent
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Unintentional Humor??? (Score:2, Interesting)
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*eyes closed* "Thaaaanks!"
You see what you did with your gay little browser?
I'm afraid Slashdot has disappeared completely... up its own asshole.
Two Words (Score:2, Flamebait)
Headline not quite accurate (Score:5, Informative)
"Yesterday, however, the justices agreed to hear arguments on whether Jaynes could challenge the anti-spam law as unconstitutional in general, even if it was constitutionally applied to him." (Emphasis mine)
So that means that he gets to present arguments that would support his ability to appeal on constitutionality. Pretty circuitous.
Also, I think it's great. Spam is clearly theft of services, and the sooner that gets legally solidified, the sooner the dirtbag spammers will quit being able to whinge about free speech.
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First Amendment isn't relevant (Score:2)
The law seems fine to me (Score:4, Insightful)
Commercial Speech (Score:5, Informative)
"In Central Hudson, the Supreme Court set out the important four-part test for assessing government restrictions on commercial speech:
'[First] . . . [the commercial speech] at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.'"
Almost all spammers will fail the first test, including the waste of skin from the article. There is no such thing as a legitimate spammer.
Spam/advertizing should NOT be protected by th 1st (Score:2)
I don't see this as any different than him having the ability to legally breaking into my property to hand me an advert. According to his thinking, I don't have to read the advert, but he has a right to force his way into my property to give me the advert while trying to disguise himself, and lying about who/what he is to get past any defenses.
Shouldn't I have to invite him in?
*d
Re:Spam/advertizing should NOT be protected by th (Score:2)
First Amendment? (Score:2, Interesting)
Perhaps he should be tried for several hundred thousand counts of harassment if he's successful here.
You know whos being left out here (Score:2)
Wow, nine years? (Score:2)
Missing link from story as submitted (Score:3, Informative)
Howard wrote:
"Va. Supreme Court to revisit divisive spam case; It upheld convictions but will consider constitutional issue": The Richmond Times-Dispatch today contains an article that begins, "The Supreme Court of Virginia yesterday agreed to a limited rehearing of its closely divided decision upholding the first felony spam convictions in the country."
My earlier coverage of the Supreme Court of Virginia's original 4-3 ruling in this case, issued February 29, 2008, appears here and here.
Yesterday's order granting rehearing on specified issues can be accessed at this link.
Posted at 08:04 PM by Howard Bashman
A Better Solution (Score:3, Funny)
Never mind courts and jail and all that crap. Can't we just beat the son-of-a-bitch to death with our G1ANT PEEN1SES?
Spamming is a major crime, treat it that way. (Score:3, Interesting)
My mail server gets 1.2 million spams a day compared to about 5,000 messages a day of legitimate traffic. My business has suffered from lost customers and lost business from mail delays caused by spam storms, much ill-will from customers has been caused and much time and money has been spent on anti-spam resources, not to mention all the lost technical time which could have gone into research and development of innovative products which instead gets wasted fighting spam storm related issues.
Spamming is not a first amendment issue, it is basic fraud and theft. Mega-jail sentences should be applied because the damage being done is major. It's not just a waste of bandwidth and people's time to delete the messages, it is real dollars and cents damage to the point where it is helping to drive my business under.
If one of my family members were a spammer, they'd be lucky to just have a busted nose and broken limbs. I'd go berzerker on their sorry ass. No mercy for spammers. None.
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Emails that use forged information are not that difficult to identify, and sanctioning individuals and businesses that do it would have no effect on genuine exercises of free speech.
Emails that lack a meaningful way of opting out, disregard instructions to drop the address or mislead the reader about who sent it and why, are likewise not protected free speech.
It's just not as nebulous as a lot of people would
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...where my SMTP server and email accounts begin. The Do Not Call registry, as well as the laws banning unsolicited faxes and telemarketing calls to mobile phones also operate on this principle.
That's the key - snail mail senders are paying the cost of sending the email; here you are covering its cost.
On a related note, I wish those principles applied to my snail mailbox, I'm tired of dealing with all the junk mail. I'm about ready to go truly paperless and just take the darn thing down, because the postal service is only concerned about the money they make from bulk mailers and not whether I want that trash, which I have to dispose of. It takes far more effort and potential expense to deal with trash mail than spam, even. It's of course the USPS' choice, since they own the system and think it's fine and dandy. I treat it the same way, though, I don't even CONSIDER unsolicited commercial mail from anyone, it goes right into the trash. I don't even open them to sort out recyclable content.
The USPS has a form - 1500 Application for Listing and / or Prohibitory Order - that allows you to stop being sent pornographic material. You need to fill it out for each sender; what is explicit or pornographic is your call. So, if you find coupon mailers pornographic or explicit, well, to each his own.