sábado, 13 de setembro de 2008

A Lei anti-spam no Estado de Virginia não fere a Primeira Emenda

O Professor Farlei Martins envia importante máteria publicada pelo jornal "New York Times" no sentido de que a lei anti-spam do Estado de Virginia foi considerada por sua Corte Suprema constitucional por não ferir a Primeira Emenda.
Virginia Court Strikes Down Anti-Spam Law

RICHMOND, Va. (AP) -- The Virginia Supreme Court declared the state's
anti-spam law unconstitutional Friday and reversed the conviction of a man
once considered one of the world's most prolific spammers.
The court unanimously agreed with Jeremy Jaynes' argument that the law
violates the free-speech protections of the First Amendment because it does
not just restrict commercial e-mails -- it restricts other unsolicited
messages as well. Most other states also have anti-spam laws, and there is a
federal CAN-SPAM Act as well, but those laws apply only to commercial e-mail
The Virginia law ''is unconstitutionally overbroad on its face because it
prohibits the anonymous transmission of all unsolicited bulk e-mails,
including those containing political, religious or other speech protected by
the First Amendment to the U.S. Constitution,'' Justice G. Steven Agee
Agee wrote that ''were the Federalist Papers just being published today via
e-mail, that transmission by Publius would violate the statute.'' Publius
was the pseudonym used by Alexander Hamilton, James Madison and John Jay in
essays urging ratification of the Constitution.
''In my view, the case was never about Jeremy Jaynes -- it was about the
First Amendment,'' said Jaynes' attorney, Thomas M. Wolf. ''The argument was
never that there's a constitutional right to send commercial spam. It was
that the government cannot criminalize the sending of noncommercial e-mail
for political and religious purposes, and that is what this statute did.''
Lawyers for the state had argued that the First Amendment doesn't apply
because the Virginia law bars trespassing on privately owned e-mail servers
through phony e-mail routing and transmission information. The court
rejected that characterization of the law.
Attorney General Bob McDonnell said he was ''deeply disappointed'' and vowed
to take the issue to the U.S. Supreme Court.
''Jeremy Jaynes used the private property of Internet service providers to
defraud individuals worldwide,'' McDonnell said. ''This was not a matter of
free speech, it was fraud. Virginia acted appropriately to use this new law
to put an end to this criminal behavior.''
John Levine, a board member of the Coalition Against Unsolicited Commercial
E-mail and one of the state's expert witnesses in the Jaynes case, said he
too was disappointed, but added that the ruling won't have broad
repercussions because Virginia is the only state that prohibits
noncommercial spam.
''I don't see it as a fatal setback for anti-spam law,'' Levine said.
In 2004, Jaynes became the first person in the country to be convicted of a
felony for sending unsolicited bulk e-mail. Authorities claimed Jaynes sent
up to 10 million e-mails a day from his home in Raleigh, N.C. He was
sentenced to nine years but is currently serving time in federal prison for
an unrelated securities fraud conviction unrelated to the Virginia case,
Wolf said.
Jaynes was charged in the spam case in Virginia because the e-mails went
through an AOL server there.
The Virginia Supreme Court last February affirmed Jaynes' conviction on
several grounds but later agreed, without explanation, to reconsider the
First Amendment issue. Jaynes was allowed to argue that the law
unconstitutionally infringed on political and religious speech even though
all his spam was commercial.
Wolf said sending commercial spam is still illegal in Virginia under the
federal CAN-SPAM Act. However, he said the federal law does not apply to
Jaynes because it was adopted after he sent the e-mails that were the basis
for the state charter.

2 comentários:

Paulo Fehlauer disse...

Meu caro, o texto do NYT diz exatamente o contrário do que você afirma no título:

The Virginia Supreme Court declared the state's anti-spam law unconstitutional Friday and reversed the conviction of a man
once considered one of the world's most prolific spammers.

A Suprema Corte da Virgínia declarou a lei anti-spam do estado inconstitucional na sexta-feira, e reverteu a condenação de um homem que já foi considerado um dos maiores spammers do mundo.

Prof. Ribas disse...

Desculpe o equivoco. Vc está certo. Parti de raciocínio equivocado