Jaynes v. Com.

• Decision Date: 12 September 2008
• Docket Number: Record No. 062388.
• Citation: 666 S.E.2d 303,276 Va. 443
• Parties: Jeremy JAYNES v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

666 S.E.2d 303

276 Va. 443

Jeremy JAYNES v. COMMONWEALTH of Virginia.

Record No. 062388.

Supreme Court of Virginia.

September 12, 2008.¹

Thomas M. Wolf, Richmond (Joseph M. Rainsbury, Roanoke; David A. Oblon; LeClair Ryan; Albo & Oblon, 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. McGuire, Assistant Attorney General on briefs), for appellee.

Amici Curiae: American Civil Liberties Union of Virginia, Inc.,; Electronic Frontier Foundation (Rebecca K. Glenberg, Richmond, on brief), in support of appellant.

Amici Curiae: The Rutherford Institute (John W. Whitehead, Charlottesville; Douglas R. McKusick; L. llaine Upton on brief), in support of appellant.

Amicus Curiae: United States Internet Service Provider Association (Jennifer C. Archie; Richard P. Bress; Abid R. Qureshi; Alexander Maltas; Latham & Watkins, on brief), in support of appellee.

Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, AGEE,² and GOODWYN, JJ., and LACY, S.J.

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 § 18.2-152.3:1, 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 reverse 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.³ However, investigators used a sophisticated database search to identify Jaynes as the sender of the e-mails.⁴ 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. . . .

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 storage discs which contained AOL e-mail address information and other personal and private account information for millions of AOL subscribers. The AOL user information had been stolen from AOL by a former employee and was in Jaynes' possession. 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."⁵

An expert witness testified 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. Other evidence at trial demonstrated that all of AOL's servers were located in Virginia, although some were located in Loudoun County and others were located in Prince William County.

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. Jaynes filed a separate motion to strike in which he challenged the jurisdiction of the circuit court. The court determined it had jurisdiction and denied the motion to strike.

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.

II. ANALYSIS

Jaynes makes four 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 "abridge[s] 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 the volume of transmissions 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 e-mails 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 located in Virginia, and that the location of AOL's servers was information easily accessible to the general public. Applying our standard of review to the evidence presented along with all reasonable inferences therefrom, we conclude that the evidence supports the conclusion that Jaynes knew and intended that the e-mails he sent to AOL subscribers would utilize AOL's servers which are located in Virginia. Thus an intended and necessary result of Jaynes' action, the e-mail transmission through the computer network, occurred in Virginia.

Furthermore, a state may exercise jurisdiction over criminal acts that are committed outside the state, but are intended to, and do in fact, produce harm within the state. "`It has long been a commonplace of criminal liability that a person may be charged in the place where the evil results, though he is beyond the jurisdiction when he starts the train of events of which the evil is the fruit.'" Travelers Health Ass'n v. Commonwealth, 188 Va. 877, 892, 51 S.E.2d 263, 269 (1949) (citing Strassheim v. Daily, 221 U.S. 280, 284-85, 31 S.Ct. 558, 55 L.Ed. 735 (1911)).

Jaynes, relying on Moreno, argues that this principle, referred to as the "immediate result doctrine," is not applicable if third parties intervene between the out-of-state conduct and the in-state harm. In Moreno, the defendant, while in Arizona, arranged for delivery of drugs to an accomplice in Arizona who, in turn, delivered the drugs to two other accomplices who ultimately sold the drugs in Virginia. 249 Va. at 17-18, 452 S.E.2d at 654. Noting that drug distribution is not a continuing offense and that payment is not an element of the crime of drug distribution, id. at 18-20, 452 S.E.2d at 654-55, we concluded that the discrete crime of drug distribution was committed by the defendant while in Arizona and that the ultimate sale of the drugs in Virginia was not the "immediate result" of the distribution of drugs in Arizona because the subsequent distributions by Moreno's accomplices intervened. Id. at 19, 452 S.E.2d at 655.

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