Wednesday, July 09, 2008

Spam Jurisdiction

As I explained in an earlier post, jurisdiction is a court’s power to act in a given case. Law divides jurisdiction into two categories.

Subject-matter jurisdiction is a court’s ability to hear and decide a particular kind of case. In the U.S., copyright law is exclusively federal law, so a state court doesn’t have subject-matter jurisdiction to decide a copyright case.

Personal jurisdiction is a court’s ability to exercise its authority over a particular person. To see how it works, imagine that a court in, say, Indiana has subject-matter jurisdiction to hear and decide cases involving murder (the intentional killing of another human being). A defendant charged with murder and set to be tried by the court points out that (i) neither he nor the victim was a citizen of Indiana, (ii) the killing occurred in Oregon and (iii) neither the conduct nor anything else about the crime has any ties with Indiana. He'd win on that argument because on those facts the Indiana court wouldn't have personal jurisdiction to try the case. It would have to be tried in Oregon or some other state with a connection to the crime.

For a court to legitimately exercise its authority over someone, that person essentially has to either (i) be in the territory where the court sits (e.g., Utah), (ii) have conducted business or otherwise engaged in activity in that territory or (iii) have engaged in activity outside the territory that had an effect in that territory. This is a matter of simple fairness. It would, for example, be blatantly unfair for a court in Alabama to enter a judgment against me when I have (i) never been to Alabama, (ii) never conducted business or any activity in Alabama and (iii) never engaged in any activity that, to my knowledge, had any impact at all in Alabama.

Our modern U.S. law dealing with personal jurisdiction is a product of our very complex federal system (one federal jurisdiction and 50+ state and other component jurisdictions). It is also a function of the fact that civil litigants long figured out that it could be a useful point of leverage to file suit in Alaska against someone who lives in Maryland. It will be a lot more expensive and time-consuming to defend that suit in Alaska, so the defendant might be more inclined to settle. Courts essentially said that’s not fair and we won’t let you do it.

This post, though, is about personal jurisdiction in a criminal case. I outlined the basic principles involved in that earlier post.

The case we’re going to focus on is Jaynes v. Commonwealth, 275 Va. 341, 657 S.E.2d 478 (Virginia Supreme Court 2008), and here are the facts, as the court described them:
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. However, investigators used a sophisticated database search to identify Jaynes as the sender of the e-mails. Jaynes was arrested and charged with violating [Virginia] Code § 18.2-152.3:1. . . .
Jaynes v. Commonwealth, supra. Section 18.2-152.3:1 provides as follows:
A. Any person who. . . [u]ses 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 [t]he 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 was tried on the charges and convicted by a jury. Jaynes v. Commonwealth, supra. According to the court’s opinion, evidence presented at trial showed he knew that
the more than 50,000 recipients of his unsolicited e-mails were subscribers to AOL . . . because the e-mail addresses . . . ended in `@aol. Com’ and came from discs stolen from AOL. Jaynes' e-mails advertised . . . three products. . . .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 . . . 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.
Jaynes v. Commonwealth, supra.

That evidence was important because in appealing his conviction to the Virginia Supreme Court, Jaynes claimed that the trial court – the Virginia circuit court – did not have jurisdiction over him 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 . . . from his home in . . . 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 . . . cannot be the basis for jurisdiction over him by Virginia courts. Therefore, . . . the circuit court had no jurisdiction over him and his convictions are void.
Jaynes v. Commonwealth, supra.

That’s a really great argument – if it works – because he wins even if he committed all the acts the prosecution attributed to him. Jurisdiction can be one of those nuclear bombs I occasionally mention – like the fact that something claimed to be a crime really isn’t a crime, legally. Those claims have nothing to do with the facts; they go directly to the court’s ability to act. If there’s no crime, there can be no conviction, because there’s nothing to convict someone of. (Law calls that “legal impossibility.”) And if the court doesn’t have jurisdiction, then it can’t act; a conviction entered by a jury impaneled by a court that doesn’t have jurisdiction to try a case is null and void.

Jaynes’ argument, though, didn’t work. The Virginia Supreme Court first rejected his claim that
he “merely” sent emails that “happened” to be routed through AOL servers:
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 servers are located in Virginia, and . . . the location . . . was information easily accessible to the general public. . . . [T]he 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.
Jaynes v. Commonwealth, supra.

Jaynes also argued that an email “could be routed through a number of different mail handling networks” before reaching its destination. He claimed “the intervention of intermediate e-mail routers and servers” prior to the emails’ arrival “at the AOL servers shows that the alleged harm through the AOL servers in Virginia was not the `immediate result’” of his actions in North Carolina. Jaynes v. Commonwealth, supra. Again, the Virginia Supreme Court disagreed:
[S]electing AOL subscribers as recipients of his e-mails insured the use of AOL's computer network to deliver the e-mails and such use was the `immediate result’ of Jaynes' action, regardless of any intermediate routes taken by the e-mails. Because the use of the computer network of an e-mail service provider or its subscribers is an integral part of the crime charged and because the use of AOL's e-mail servers was the `immediate result’ of Jaynes' acts, . . . Jaynes was amenable to prosecution in Virginia for a violation of Code § 18.2-152.1:3. . . . [T]he circuit court had jurisdiction.
Jaynes v. Commonwealth, supra.

The residual question this case leaves unanswered is: What happens when someone is charged with violating the Virginia spam act but the facts DON'T show that they knowingly and deliberately targeted people in Virginia by, say, using AOL servers? What if someone simply sends out spam and some of it affects people in Virginia? That's the difficult issue.

And this jurisdictional decision is not the end of this case: Jaynes made it back to the Virginia Supreme Court last month; this time, he argued that Virginia’s anti-spam statute violates the First Amendment and is therefore unconstitutional and unenforceable. He’s currently serving the nine-year sentence he got for violating that statute under house arrest in Loudon, Virginia. So now he’s trying another major nuclear bomb – the argument that because the statute is unconstitutional, the convictions can’t stand. He just might win.

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