Yesterday, the Washington Post reported that the conviction of spammer Jeremy Jaynes had been upheld in a Virginia Court of Appeals. In February 2005, Jaynes received a nine-year prison sentence. However, he remained free on a $1 million bond while his case went to the Virginia appellate court.
His attorneys disagree with the court’s decision, and will appeal again. Their main arguments are that there had been ‘overbreadth’ infringments of Jaynes’ First Amendment rights, and that Virginia courts have no jurisdiction because Jayne’s crime was committed from his home in North Carolina.
The First Amendment which relates to freedom of speech as defined in the U.S. Constitution always merits further discussion and further refinement. It’s particularly interesting when examining the now widely-used forms of electronic communication and media. How should the law be applied? And where are the limits?
Using the First Amendment argument might just be a legal ploy; an attempt to keep Jaynes out of prison a bit longer. According to statements included in a 26-page opinion put forth by Judge James W. Haley, Jr., “facial challenges are sometimes allowed when an appellant claims First Amendment protections”. Because “the Supreme Court recently said the First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges”, the Jaynes’ attorneys First Amendment challenge might just be given another day in court.
The argument that a Virginia Circuit court doesn’t have the jurisdiction to review this case also seems an ineffective argument. Haley’s Opinion states that “[c]ircuit courts in Virginia have exclusive original jurisdiction over all felony indictments for offenses committed within their respective circuits”. North Carolina and Virginia are both in the 4th Circuit. Additionally, “jurisdiction may exist where the immediate harm occurs, even if the criminal act does not physically occur there”.
By its very nature, cyber crime crosses territorial and legislative boarders. Differences in national legislation are one of the reasons why it can be difficult to prosecute cyber criminals. The Jaynes case may be nearly over – it’s to be hoped that the court ruling may act as a precedent which can be used to effectively prosecute spammers in the future, and which will also pave the way for more effective cyber crime legislation.