Jaynes v. Com., Record No. 062388.

• Decision Date: 29 February 2008
• Docket Number: Record No. 062388.
• Parties: Jeremy JAYNES v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

657 S.E.2d 478

275 Va. 341

Jeremy JAYNES v. COMMONWEALTH of Virginia.

Record No. 062388.

Supreme Court of Virginia.

February 29, 2008.

Thomas M. Wolf, Richmond (David A. Oblon, Arlington; Joseph M. Rainsbury; LeClair Ryan, Roanoke; Albo Oblon, Arlington, on briefs), for appellant.

William E. Thro, State Solicitor General (Robert F. McDonnell, Attorney General; Stephen R. McCullough, Deputy State Solicitor General; William C. Mims, Chief Deputy Attorney General; Lisa M. Hicks-Thomas, Deputy Attorney General; Samuel E. Fishel,

IV, Senior Assistant Attorney General; Russell E. MpGuire, Assistant Attorney General, on brief), for appellee.

American Civil Liberties Union of Virginia, Inc. and Electronic Frontier Foundation (Rebecca K. Glenberg, Richmond, on brief), amici curiae, in support of appellant.

The Rutherford Institute (John W. Whitehead, Charlottesville; Douglas R. McKusick;

L. Ilaine Upton, on brief), amicus curiae, in support of appellant.

United State Internet Service Provider Association (Jennifer C. Archie; Abid R. Qureshi; Latham & Watkins, Washington, DC, on brief), amicus curiae, in support of appellee.

Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, and AGEE, JJ., and RUSSELL and LACY, S.JJ.

OPINION BY Justice G. STEVEN AGEE.

Jeremy Jaynes appeals from the judgment of the Court of Appeals which affirmed his convictions in the Circuit Court of Loudoun County for violations of Code § 18.2.452.3:1, the unsolicited bulk electronic mail (e-mail) provision of the Virginia Computer Crimes Act, Code §§ 18.2-152.1 through-152.15. For the reasons set forth below, we will affirm the judgment of the Court of Appeals.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

From his home in Raleigh, North Carolina, Jaynes used several computers, routers and servers to send over 10,000 e-mails within a 24-hour period to subscribers of America Online, Inc. (AOL) on each of three separate occasions. On July 16, 2003, Jaynes sent 12,197 pieces of unsolicited e-mail with falsified routing and transmission information onto AOL's proprietary network. On July 19, 2003, he sent 24,172, and on July 26, 2003, he sent 19,104. None of the recipients of the e-mails had requested any communication from Jaynes. He intentionally falsified the header information and sender domain names before transmitting the e-mails to the recipients, causing the Internet Protocol (IP) addresses to convey false information to every recipient about Jaynes' identity as the sender.¹ However, investigators used a sophisticated database search to identify Jaynes as the sender of the e-mails.² Jaynes was arrested and charged with violating Code § 18.2-152.3:1, which provides in relevant part:

A. Any person who:

1. Uses a computer or computer network with the intent to falsify or forge electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers . . . is guilty of a Class 1 misdemeanor.

B. A person is guilty of a Class 6 felony if he commits a violation of subsection A and:

1. The volume of UBE transmitted exceeded 10,000 attempted recipients in any 24-hour period, 100,000 attempted recipients in any 30-day time period, or one million attempted recipients in any one-year time period. . . .

Jaynes moved to dismiss the charges against him on the grounds that the statute violated the dormant. Commerce Clause, was unconstitutionally vague, and violated the First Amendment. The circuit court denied that motion.

During trial, evidence demonstrated that Jaynes knew that all of the more than 50,000 recipients of his unsolicited e-mails were subscribers to AOL, in part, because the e-mail addresses of all recipients ended in "@aol. com" and came from discs stolen from AOL. Jaynes' e-mails advertised one of three products: (1) a FedEx refund claims product, (2) a "Penny Stock Picker," and (3) a "History Eraser" product.³ To purchase one of these products, potential buyers would click on a hyperlink within the e-mail, which redirected them outside the e-mail, where they could consummate the purchase. Jaynes operated his enterprise through several companies which were not registered to do business in North Carolina, and evidence was introduced as to billing and payment activities for these companies, including evidence that registration fees were paid to AOL with credit cards held by fictitious account holders.⁴

While executing a search of Jaynes' home, police discovered a cache of compact discs (CDs) containing over 176 million full e-mail addresses and 1.3 billion e-mail user names. The search also led to the confiscation of a storage disc which contained AOL e-mail address information and other personal and private account information for millions of AOL subscribers. Police also discovered multiple storage discs which contained 107 million AOL e-mail addresses. Richard Rubenstein, manager of technical security investigations at AOL, testified that the discs recovered at Jaynes' home "contained proprietary information" of "pretty near all" AOL account customers.⁵ The AOL user information had been stolen from AOL by a former employee and was in Jaynes' possession.

Dr. John Levine, a consultant and author, testified as an expert witness and explained that the e-mails sent by Jaynes were not consistent with solicited bulk e-mail, but rather constituted unsolicited bulk e-mail (sometimes referred to as "spam" e-mail) because Jaynes had disguised the true sender and header information and used multiple addresses to send the e-mails. He explained:

[H]ere the [e-mail] has been spread around nearly a thousand addresses. Where it's reasonable that you might use maybe a dozen addresses if you have a really big system and you're sending it from a dozen computers, I can't think of a valid reason why you would need to spread your e-mail over a thousand different addresses unless, again, you're trying to disguise the source.

The fact — both the fact that the domains do not seem plausible, they don't seem familiar, and the fact that it's spread out in a way that seems intended to disguise the origin of the mail, is what tells me this is not solicited e-mail.

AOL, which houses all of its e-mail servers in Virginia, was directly affected by Jaynes' spam e-mail attack.⁶ Brian Sullivan, the senior technical director for mail operations at, AOL, testified that bulk e-mail "tends to create a lot of confusion" for AOL customers and that AOL receives "7 to 10 million complaints per day" regarding spam e-mails. Sullivan also described the impact of spam emails, explaining that "[i]f someone's mailbox is full because they got a truckload of spam and there's no more room, a message coming from Grandma is returned back to the sender. We can't take it at that point,"

A jury convicted Jaynes of three counts of violating Code § 18.2-152.3:1, and the circuit court sentenced Jaynes to three years in prison on each count, with the sentences to run consecutively for an active term of imprisonment of nine years. The Court of Appeals affirmed his convictions, Jaynes v Commonwealth, 48 Va.App. 673, 634 S.E.2d 357 (2006). We awarded Jaynes an appeal.

IL ANALYSIS

Jaynes makes four distinct assignments of error to the judgment of the Court of Appeals. First, he assigns error to the determination that the circuit court had jurisdiction over him on the crimes charged. Second, Jaynes contends Code § 18.2-152.3:1 "abridgers] the First Amendment right to anonymous speech," and it was error not to reverse his convictions on that basis. Separately, Jaynes assigns as error the failure of the Court of Appeals to hold that Code § 18.2-152.3:1 is void for vagueness. Lastly, Jaynes' posits that the statute violates the Commerce Clause of the United States Constitution.

A. Jurisdiction

Jaynes asserts that the Court of Appeals erred in holding that the circuit court had jurisdiction over him for violating Code § 18.2-152.3:1 because he did not "use" a computer in Virginia. He contends that a violation of that statute can occur only in the location where the e-mail routing information is falsified. Jaynes maintains that because he only used computers to send the e-mails from his home in Raleigh, North Carolina, he committed no crime in Virginia. Further, because he had no control over the routing of the e-mails, he argues his actions did not have an "immediate result" in Virginia, and under Moreno v. Baskerville, 249 Va. 16, 452 S.E.2d 653 (1995), could not be the basis for jurisdiction over him by Virginia courts. Therefore, according to Jaynes, the circuit court had no jurisdiction over him and his convictions are void.

To successfully prosecute a crime under Code § 18.2-152.3:1(B), the Commonwealth must establish all the elements of that crime. In addition to the element of transmission volume within a specific time period, the Commonwealth must prove the sender used a computer and that such use was with the intent of falsifying routing information. The Commonwealth must also prove that the transmission of such false routing information occurred in connection with the use of an e-mail provider's computer network for that transmission. Thus, the crime is not complete until there is e-mail transmission passing through or into the computer, network of the e-mail provider or subscriber containing the false routing information.

Jaynes argues that he "merely sent emails that happened to be routed through AOL servers." We disagree. As the evidence established, all e-mail must flow through the recipient's e-mail server in order to reach the intended recipient. By selecting AOL subscribers as his e-mail recipients, Jaynes knew and intended that his e-mails would utilize AOL servers because he clearly intended to send to users whose e-mails ended in "@aol.com." The evidence established that the AOL servers are...