Outside the Beltway

Spammer Sentenced to Nine Years in Jail

James Joyner · Friday, April 8, 2005 · 3 comments

Jeremy Jaynes, the first to be convicted under a federal anti-spam law, was sentenced today to nine years in prison.

Judge Sentences Spammer to Nine Years (AP)

A man convicted in the nation’s first felony prosecution for illegal spamming was sentenced to nine years in prison Friday, but the judge postponed the sentence while the case is appealed. Loudoun County Circuit Judge Thomas Horne said that because the law targeting bulk e-mail distribution is new and raises constitutional questions, it was appropriate to defer the prison time until appeals courts rule.

Jeremy Jaynes was convicted in November for using false Internet addresses to send mass e-mail ads through an AOL server in Loudoun. A jury had recommended the nine-year prison term. Virginia, where AOL is based, prosecuted the case under a law that took effect in 2003 barring people from sending bulk e-mail that is unsolicited and masks its origin. Prosecutors said Jaynes used the Internet to peddle sham products and services such as a “FedEx refund processor.”

I live right up the road from AOL and used to pass them on my way to work every day until I changed jobs.

One suspects that the constitutional arguments here will fail. The obvious claims are under the 1st and 8th Amendments (and, by extension, the 14th). Jaynes could argue that his free speech rights are being violated here.

The courts have been very stingy in protecting commercial speech, especially those that impose externalities on others. Indeed, until fairly recently, commercial speech was deemed to be uncovered by the 1st Amendment, period.

I’m less familiar with 8th Amendment jurisprudence but would think it would be hard to convince a judge that a nine year sentence for one of the most prolific spammers constitutes “excessive” punishment. The courts have applied a proportionality test in such cases. Given the number of offenses here, nine years seems quite reasonable.