Virginia Spam Law Struck Down, Experts Question CAN-SPAM

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Often, high courts, such as state supreme courts and the U.S. Supreme Court, make decisions that at first appear to be counterintuitive. Once the decisions are studied (or, in the case of non-attorneys, news accounts are read), it becomes apparent that the issue on which the decision was based is subtle. Observers may end up agreeing or disagreeing with the reasoning on that issue, but the justices invariably are dealing with a principle far removed from the obvious facts in the case.


The Supreme Court of the State of Virginia overturned the conviction (and with it a nine-year prison sentence) of Jeremy Jaynes, a spammer from Raleigh, NC. Jaynes was convicted four years ago of sending thousands of spam e-mails from his home.


The unanimous decision was not a case of the justices defending spam. The court found that the law under which Jaynes was convicted was too broad and could threaten protected speech. Under the law, the court found, religious and political speech could be endangered.


The good news is that the law the Virginia justices were dealing with was not the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) statute. The story briefly notes that CAN-SPAM has provisions to protect the type of non-commercial speech that concerned the Virginia justices. That's reassuring. It seems likely, however, that lawyers working for spammers are poring over the decision, which can be read here, to see if it gives them any more ammunition in efforts to exploit the ever-present tensions between the First Amendment and commercial speech.


Brian Krebs addresses the ruling in his Washington Post blog. He reiterates that CAN-SPAM protects non-commercial speech. However, an expert paraphrased in the piece says that authorities like to use the state laws -- they exist in at least 38 states -- because CAN-SPAM requires the plaintiff to pay the defendant's legal fees if the case is tossed or there is an acquittal. The other interesting element of the story is that the quotes criticizing the decision don't appear to get to the heart of the vital questions on free speech issues with which the justices dealt. Instead, the comments implied that the court was approving spam.


Thus, it seems that CAN-SPAM may be as much a safety net that guards against poorly constructed state laws as a primary weapon. This post provides a clear rundown of CAN-SPAM. The main provisions aim at banning false or misleading header information and deceptive subject lines. Among other requirements, the Act mandates an opt-out for receivers, and that the e-mail be labeled as an advertisement and have a valid postal address. The piece also outlines penalties.


Another reason that people may shy away from using CAN-SPAM is that it doesn't work. First of all, a lot of spam originates overseas and circumvents our legal system. CAN-SPAM has its own shortcoming, described by Infopackets. The writer says the law doesn't require opt-in and doesn't allow people to sue spammers. Apparently, suits can only be brought by the government. The post quotes CommTouch numbers that said that less than 1 percent of e-mail solicitations it received this year comply with CAN-SPAM. Eighty percent, it says, had no valid return e-mail and 40 percent had deceptive subject lines.