Wanted: Metaphors for spamming

Virginia's Supreme Court stuck down the state's anti-spam law Friday, overturning the conviction of one of the most prolific mass emailers in history.In a surprising reversal, the court deemed the legislation unconstitutional just a few months after upholding Jeremy Jaynes's nine-year jail sentence for sending up to 10 million unsolicited emails a day from his home in North Carolina (and making $24 million while doing it).

Mr. Jaynes's attorneys argued that the Virginia law runs against the First Amendment by banning mass emails that “falsify or forge” the identity of the sender. The act went too far by targeting all anonymized email, not just anonymous commercial email, they held.

Jaynes was certainly sending commercial spam; but his lawyers persuaded the court that since the law could have prohibited religious or political free speech, the whole act had to be thrown out. The federal CAN-SPAM Act still stands – it only goes after unsolicited emails sent for financial gain – but that law does apply here because it was passed after Jaynes's indictment.

Technology law can be confusing. It's hard to attach legal precedents to anything that can boil down to electrons zipping through wires. Because of its abstract nature, most legislation affecting computers works through metaphors. For example: Copying and sharing MP3s is wrong because it's like stealing physical CDs.

The hard part is getting everyone to agree on the right metaphor. Back in 2004, Jaynes was the first American to be convicted of felony emailing. And now, four years later, the legal community still cannot settle on a good real-world equivalent to spamming.

Justice G. Steven Agee looked back to the 1780s for his historical parallel. In his decision, Agee wrote that "were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute." (Publius was the pseudonym used by Alexander Hamilton, James Madison, and John Jay in that series of essays.) If you buy this allusion, then hackers may "falsify" email addresses in order to ensure their anonymity – that, after all, is the only real way to remain secret on the Internet.

But state Attorney General Bob McDonnell insists on a different metaphor. He argues that the First Amendment has nothing to do with Jaynes's case because, really, his crime is more like trespassing. "Jeremy Jaynes used the private property of Internet service providers to defraud individuals worldwide," McDonnell told the AP. "This was not a matter of free speech, it was fraud. Virginia acted appropriately to use this new law to put an end to this criminal behavior."

Several more metaphors came from Chris Thompson, a spokesman for Spamhaus, an international nonprofit group that tracks and combats spammers, who spun the story in the Washington Post:

[Thompson] pointed out that unlicensed radio stations may not broadcast, only the Postal Service can place mail in mailboxes and loud sound trucks may not troll neighborhoods with impunity. "None of those minor restrictions appear to infringe on a citizen's ability to express themselves freely," Thompson said. "Why the court would deny basic protections for ISP servers and bandwidth escapes us."
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