Attorney General Bob McDonnell asked the United States Supreme Court to reinstate Virginia’s anti-spam law Thursday. The Attorney General’s Office filed a petition for certiorari in Virginia v. Jaynes, appealing a September 12 ruling by the Virginia Supreme Court that invalidated the law. A decision on the petition is expected in early 2009.

In November 2004, a jury in the Loudoun County Circuit Court convicted spammer Jeremy D. Jaynes of violating Virginia’s Anti-Spam Act. This marked the first felony conviction in a spam case in the United States, and the case received international attention. After convicting the defendant, the same jury sentenced him to serve nine years in prison.

“Illegal spammers cannot be tolerated in Virginia,” says McDonnell. “Through their actions, they defraud our citizens and impede electronic commerce. The Internet and its great expansion of free enterprise and information flow cannot be undermined by large scale spam operations. I hope that the U.S. Supreme Court will grant our petition and uphold this landmark statute.”

At the time of his arrest, Jaynes was listed as the eighth-worst spammer in the world on The Spamhaus Project’s Registry of Known Spammer Organizations. His global fraud netted millions of dollars for him as well as a mansion and other homes in Raleigh, North Carolina.

The Virginia Supreme Court struck down the anti-spam law because it could be unconstitutional in hypothetical circumstances involving political or religious speech that were not present in the Jaynes case. McDonnell’s petition asserts that the Court was wrong to completely invalidate the statute on those hypothetical grounds.

McDonnell says Jaynes did not engage in political or religious speech, which is protected by the First Amendment. Rather, he sent commercial spam, peddling things like a “penny stock picker” and an “Internet history eraser.” By falsifying e-mail routing information through the private servers of Internet service providers like AOL, Jaynes’ spam constituted an illegal intrusion on private property.

Virginia’s groundbreaking Anti-Spam Act prohibits the sending of unsolicited bulk e-mail by fraudulent means, such as changing the header or routing information to prevent recipients from contacting or knowing the identity of the sender. Such activity is punishable as a felony if any one of the following conditions applies:

- The volume of spam transmitted exceeds 10,000 in any 24-hour time period; 100,000 in any 30-day period; or one million in any one-year time period.
- Revenue generated from specific spam exceeds $1,000 or total revenue from all spam transmitted to any ISP exceeds $50,000.
- The defendant knowingly hires, employs, uses or permits any minor to assist in the commission of spam.

A felony conviction under the Act is punishable by a prison sentence of up to five years and a fine of up to $2,500. The Act also includes asset forfeiture provisions to seize assets or proceeds obtained through the illegal spam operation. The legislation authorizes the Attorney General’s Computer Crime Section to investigate and prosecute spammers.

Jaynes is currently serving a prison sentence in a federal penitentiary on other charges that were brought to light during his spam investigation.