SPAMMER Avoids the CAN

The Commonwealth of Virginia has long been the model for many laws passed by my native Commonwealth of Kentucky. Now they’re on the cutting edge of SPAM, no pun necessarily intended.

Virginia was the first state, or commonwealth, to pass a law against spamming. Now they’re the first state to have their law struck down.

In 2004, Jeremy Jaynes, an alleged spammer, was conviced of a felony under Virginia’s anti-spam law for sending millions of alleged spam e-mail messages. Jaynes said the law violated his First Amendment right of freedom of speech, as well as his protection to “express” his political and religious views via e-mail.

Jaynes’ trial occurred in Loudoun County, Virginia, because that is the situs of the AOL servers he used to send the spam. Last Friday, the Virginia Supreme Court overturned his conviction, saying that Virginia’s law is unconstitutionally broad.

On December 16, 2003, President George W. Bush signed into law the CAN-SPAM Act (15 U.S.C. 7701, et seq). That law sought to establish the first U.S. standards for sending commercial e-mail. It requires the Federal Trade Commission to enforce its provisions. The acronym, CAN-SPAM, comes from the full name of the law, which is “Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003.”

Some spammers fondly refer to that Act as the “YOU-CAN-SPAM” Act because the legislation doesn’t require e-mailers to get permission before they send their e-mail. The law, under pre-emption thoery, arguably prevents states from enacting stronger anti-spam legislation, and prohibits individuals who receive spam from suing spammers. Some statistics, such as those showing less than one percent of spam complied with the Act in 2004, indicate the legislation has been essentially unenforced.

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