RICHMOND, Va. — The Virginia Court of Appeals yesterday upheld the nation's first felony conviction of illegal spamming.
Jeremy Jaynes, of Raleigh, N.C., considered among the top 10 spammers in the world at the time of his arrest, used the Internet to peddle pornography and sham products and services, prosecutors said. Thousands of people fell for his scam, grossing Jaynes' operations up to $750,000 per month, investigators said.
In its unanimous ruling Jaynes v. Commonwealth of Virginia, the appeals court wrote that Virginia has a "legitimate public interest" in policing unsolicited e-mail and that the state anti-spamming law's impact on interstate commerce "is incidental and clearly not excessive."
Jaynes, 32, was convicted in November 2004 for using false Internet addresses and aliases to send mass e-mail ads through an AOL server in Loudoun County, where Time Warner Inc. subsidiary AOL is based. Under Virginia law, sending unsolicited bulk e-mail is not a crime unless the sender masks his identity.
During the case prosecutors presented evidence of just 53,000 illegal e-mails, although authorities believe Jaynes was responsible for spewing out 10 million e-mails a day.
A Loudoun County jury had recommended the nine-year term for Jaynes, but Circuit Judge Thomas Horne delayed the start of his prison term during the appeal, saying the law raised constitutional questions.
Attorney General Bob McDonnell applauded the appeals court decision, which he said upheld the nation's first felony conviction of an illegal spammer.
"Spam costs Virginia citizens and businesses thousands of dollars every year in lost time and resources," McDonnell said in a statement. "Online fraud is a costly and serious crime."
McDonnell's office immediately requested the trial judge lift the suspension of Jaynes' sentence and order him to begin his prison term. A hearing date has not been scheduled.
Defense attorneys had argued that the sentence was far too long, given that Jaynes was an out-of-state resident and had violated a Virginia law that had taken effect just weeks before. The Virginia law was put on the books in July 2003.
At sentencing, Jaynes told the judge that regardless of how the appeal turns out, "I can guarantee the court I will not be involved in the e-mail marketing business again."
Jaynes' attorney, Thomas M. Wolf, argued with the broad nature of the law, which he said could result in felony charges for anyone who sends an anonymous e-mail.
"The U.S. Supreme Court decided long ago that Americans have the right to speak anonymously," he said. "By threatening people throughout the country with a felony conviction for taking steps to remain completely anonymous in sending non-commercial e-mails, the Virginia statute chills free speech."
Wolf said he plans to file an appeal to the state Supreme Court.
The jury had also convicted Jaynes' sister, Jessica DeGroot, but recommended only a $7,500 fine. Her conviction was later dismissed by the judge. A third defendant, Richard Rutkowski of Cary, N.C., was acquitted.
Thirty-eight states have anti-spam laws on the books, which can be used to impose tougher penalties for violations of the federal Can Spam Act of