Virginia Court of Appeals Reports

JAYNES v. COM., 48 Va. App. 673 (2006) 634 S.E.2d 357
Jeremy JAYNES v. COMMONWEALTH of Virginia. Record No.
1054-05-4. In the Court of Appeals of Virginia. September
5, 2006.

Appeal from the Circuit Court, Loudoun County, Thomas D.
Horne, J. Page 674





Thomas M. Wolf (John H. Craddock, Jr. Richmond; Joseph M.
Rainsbury, Roanoke; David A. Oblon, Arlington; LeClair
Ryan, P.C., Richmond; Albo & Oblon, L.L.P., Arlington, on
briefs), for appellant.

William E. Thro, State Solicitor General (Judith Williams
Jagdmann, Attorney General; Eric A. Gregory, Associate
State Solicitor General; Courtney M. Malveaux, Associate
State Solicitor General; D. Mathias Roussy, Associate State
Solicitor General; William R. Sievers, Associate State
Solicitor General; Richard B. Campbell, Deputy Attorney
General; Lisa M. Hicks-Thomas, Senior Assistant Attorney
General; Samuel E. Fishel, IV, Assistant Attorney General,
on brief), for appellee.

Amicus Curiae: The Rutherford Institute (John W.
Whitehead, Charlottesville; L. Ilaine Upton, on brief), for

Amicus Curiae: American Civil Liberties Union of Virginia,
Inc. (Rebecca K. Glenberg, on brief), for appellant.

Amicus Curiae: United States Internet Service Provider
Association (Jennifer C. Archie; Richard P. Bress; Courtney
S. Schorr; Alexander Maltas; Latham & Watkins, on brief),
Washington, DC, for appellee. Page 679

Present: HALEY, J., and BUMGARDNER and FITZPATRICK,[fn*]
Senior Judges.

[fn*] Judge Fitzpatrick participated in the hearing and
decision of this case prior to the effective date of her
retirement on March 31, 2006, and thereafter by designation
pursuant to Code § 17.1-400(D).


Jeremy Jaynes (appellant) appeals his conviction by jury
of three of counts of violating Code § 18.2-152.3:1,
the unsolicited bulk electronic mail provisions of the
Virginia Computer Crimes Act (“VCCA”). He maintains that
(1) the trial court lacked subject matter jurisdiction over
this case; (2) the statute violates the First Amendment;
(3) the statute violates the Dormant Commerce Clause; and
(4) the statute is unconstitutionally vague. We find no
merit to these claims and affirm.



The VCCA, Code §§ 18.2-152.1 to 18.2-152.13,
notably, is part of Chapter 5 of the Virginia Criminal
Code, entitled “Crimes Against Property.”

The sections of the VCCA here relevant read as follows:

§ 18.2-152.3:1.

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 of its subscribers;

* * * * * *

B. A person is guilty of a Class 6 felony if he commits a
violation of subsection A and: Page 680

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.
. . .

In a motion to dismiss before the trial; in a motion to
strike after the prosecution rested; and in a renewed
motion to strike after appellant rested his case, appellant
objected that the court lacked jurisdiction and that the
law was unconstitutional under the First Amendment; was
unconstitutionally vague; and violates the Dormant Commerce
Clause of the Constitution. The trial court denied each
motion.[fn1] Following conviction and in accordance with
the decision of the jury, the trial court sentenced
appellant to nine years in prison. This appeal followed.



The sending of e-mail is governed by Simple Mail Transfer
Protocol (“SMTP”), a set of standards to facilitate the
transfer of e-mail. SMTP specifies that a computer sending
an e-mail must contain information identifying the sender,
generally referred to as “hello domain” information, as
well as certain recipient information. The hello domain, in
turn, contains the internet protocol (“IP”) address and
domain name of the sending party. IP addresses are unique
strings of numbers; each computer accessing the Internet is
generally assigned one. For convenience and efficiency, IP
addresses of many computers are given textual equivalents
known as “domain names.” For example, a search known as a
“whois” search reveals that the domain name “”
is owned by America Online, Inc. (“AOL”), which is located
in Dulles, Virginia. Additional contact information is
provided as well. The IP addresses of four servers
associated with are Page 681 also available
because “” is the domain name associated with
those IP numbers.

When e-mail is sent, the hello domain and sender
information exist as part of the transmission information
of the e-mail. E-mail servers and routers starting with the
sender’s Internet Service Provider (“ISP”)[fn2] relay the
message forward until it reaches the e-mail servers of the
recipient’s ISP, which then direct the e-mail to the
intended recipient. These server interactions include the
presentation of the sending e-mail’s hello domain.
Essentially, the sending computer identifies itself and
presents the hello domain of the e-mail.

Each time the message passes through a different server, a
record of that transaction is added to the routing
information. Thus, using the e-mail’s routing information,
one can retrace the exact servers it went through to reach
its destination, as if each post office or mail sorting
facility added its own postmark to a letter. Furthermore, a
server along this chain could choose to block the message
from going further. The sender, however, has no way to
control or predict the pathway his message will take to
arrive at its destination. In fact, the message can be
broken up and sent in pieces through multiple unique
pathways. Despite this inherent unpredictability, the last
server through which the message passes before reaching the
recipient is his ISP’s server, in this case, AOL’s e-mail

One major complaint of e-mail users is the volume of
unsolicited bulk e-mail (often called “spam”) they receive
on a daily basis. To increase subscriber satisfaction and
to protect their networks from computer viruses and other
problems, ISPs employ a number of tactics to block spam
from reaching users. One major tactic is to identify domain
names or IP addresses that have sent unwanted e-mail in the
past and to automatically prevent the delivery of any
messages coming from those senders. Another related tactic
is to identify Page 682 senders of large numbers of
messages to verify their legitimacy. Thus, an ISP can learn
which companies sending high volumes of e-mail are
potentially fraudulent or unwanted.

People sending spam (“spammers”), then, respond by masking
their true identities to evade the protective measures.
They create false routing information or transmission
information, making messages appear as if they come from
hundreds or thousands of different domain names and IP
addresses. Thus, spammers can ensure that the ISP cannot
detect and block every e-mail they send and can evade
detection because the thousands of messages appear to come
from hundreds of different sources.



The facts in this case are generally undisputed.

Appellant used computers in his home in North Carolina to
send over ten thousand e-mails, on each of three different
days, to subscribers of AOL, an ISP that provides e-mail
accounts as part of its service. That AOL’s servers are
located in Loudoun County, Virginia, is not challenged.

On July 16, 2003, appellant sent 12,197 pieces of
unsolicited bulk e-mail with falsified routing and
transmission information onto AOL’s proprietary network. On
July 19, he sent another 24,172 similarly falsified
e-mails, and he followed on July 26 with an additional
19,104. Each message targeted an AOL subscriber. That the
sender knew each proposed recipient was an AOL subscriber
was clear because the e-mail addresses of all recipients
ended in “” The messages advertised one of three
products: either a FedEx claims product, a stock picker, or
a “history eraser.” To purchase one of these products,
potential buyers would “click” on a hyperlink within the
e-mail which redirected them to a website. Notably, this
redirection led to thousands of different websites, rather
than a single one, to consummate the purchase. Page 683

Among those items seized during a search of appellant’s
home were compact discs (CDs) containing both user names
and full e-mail addresses.[fn3] The CDs contained at least
176 million full e-mail addresses and over 1.3 billion user
names. Appellant also possessed a DVD containing not only
AOL e-mail addresses, but also other personal and private
account information for millions of AOL users. Finally,
police collected multiple “zip discs” (another type of data
storage device) containing 107 million AOL e-mail
addresses. All of the AOL user names, e-mail addresses, and
account information were stolen and illegally in
appellant’s possession.

In this case, appellant employed exactly those spammer
tactics outlined in Part II, supra, of this opinion. He
used thousands of different IP addresses and hello domains
to send tens of thousands of e-mails and avoid detection by
AOL’s network. Each e-mail advertised a commercial product;
none contained any content that was personal, political,
religious, or otherwise non-commercial. To aid his
deception, appellant registered numerous different domain
names using false contact information through Network
Solutions, whose offices are located in Virginia. The
contracts between appellant and Network Solutions require
that appellant provide accurate contact information, update
contact information when it changes, and submit to
jurisdiction in Virginia for resolution of any contract
disputes between appellant and Network Solutions.



Appellant contends that the trial court lacked
jurisdiction because he could not control the pathways his
messages took. Numerous servers and routers handled his
messages before arriving at the recipient’s mailbox. Since
any one of these intervening servers could have blocked his
e-mails or Page 684 since he could not specify which
servers his messages went through, appellant argues,
charging him with a crime in the jurisdiction of one of
those servers is inappropriate. We disagree.

Circuit courts in Virginia have exclusive original
jurisdiction over all felony indictments “for offenses
committed within their respective circuits.” Code §
19.2-239; see also Code § 17.1-513. The Supreme
Court of Virginia has said “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),
aff’d, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 (1950).
Furthermore, “[j]urisdiction may exist where the immediate
harm occurs, even if the criminal act does not physically
occur there.” Foster-Zahid v. Commonwealth, 23 Va.App. 430,
441, 477 S.E.2d 759, 764 (1996).

In Travelers Health, the Virginia State Corporation
Commission ordered the defendant to stop its solicitations
of business by mail until it complied with the Blue Sky
Law. The Court held that selling securities by mail in the
Commonwealth while not in compliance with the statute was
sufficient to give the corporation commission jurisdiction.
188 Va. at 892, 51 S.E.2d at 269. Thus, criminal
jurisdiction could lie in the state where the mail was
received. Similarly, here, criminal jurisdiction may lie
where AOL’s servers are located because it is the trespass
upon those servers that constitutes the offense.

We also find that appellant’s actions in sending the
e-mails to AOL subscribers are sufficiently direct that
Moreno v. Baskerville, 249 Va. 16, 452 S.E.2d 653 (1995),
on which appellant relies, does not apply. In Moreno, the
defendant sold drugs in Arizona knowing that the buyer
intended to take them to Virginia for resale but was not
himself involved in that resale. In ruling that the trial
court lacked jurisdiction, the Supreme Court noted that the
buyer could have chosen to resell the drugs in another
state besides Virginia and that the Page 685 defendant
would have had no control over that decision. Id. at 19,
452 S.E.2d at 655. Thus, the actions of the buyer served to
intervene and end any criminal liability Moreno might have
had for the distribution of the drugs in Virginia.

Appellant argues this situation is akin to Moreno because
intervening acts of the servers and routers were what caused
the e-mails to pass through Virginia. That is, the arrival
of the e-mails at AOL’s servers in Loudoun County was the
result of any number of computer processes, over which
appellant had no control, similar to the lack of control
Moreno had over the drugs once he sold them in Arizona. We
find no merit to this comparison.

All e-mails in question in this case were addressed to AOL
users, meaning that to arrive at the destination intended
by appellant, the messages necessarily had to pass through
AOL’s e-mail servers, all of which are in the jurisdiction
of the trial court. As one federal court noted, “e-mail
transmitted to an ISP subscriber is processed and stored on
the ISP’s e-mail computer servers. The e-mail server is
located in a discrete geographic location.” Verizon Online
Servs., Inc. v. Ralsky, 203 F.Supp.2d 601, 606 (E.D.Va.
2002). And, “once the e-mail is transmitted, it must first
pass through the ISP’s computer server to reach its
ultimate destination-the subscriber’s computer.” Id. Thus,
while the e-mails could have taken any number of pathways
to reach the intended recipients, each pathway ended at
AOL’s servers.

Furthermore, the mere fact that delivery could have failed
is insufficient to eliminate liability when delivery did
not fail. Analogously, a person can be charged with a
criminal act committed by mail even though a number of
people might handle that mail during the course of its
delivery. An appellant cannot claim that a court lacks
jurisdiction simply because any number of intervening
actions could have disrupted the criminal enterprise, but
did not.

In Moreno, the buyer could have taken the drugs from the
seller in Arizona, and sold the drugs anywhere, without
input from or change in position by the defendant seller.
Here, Page 686 appellant’s e-mail solicitations would have
been successful only if his messages arrived at their
intended destinations, which required that they pass
through AOL’s servers in Virginia.

Finally, we note that, with respect to intent, appellant
cannot challenge that he purposely intended his e-mails to
pass through AOL’s servers because the address of every
intended recipient in this case ends in “”
Necessarily, if the e-mail is transmitted to the intended
recipient, it must pass through AOL’s servers.

Accordingly, we hold that the circuit court of Loudoun
County, Virginia, properly had criminal jurisdiction to try



Appellant argues that the trial court erred in ruling that
the VCCA does not violate the First Amendment.
Specifically, he contends that the law is overbroad because
its language prohibits anonymous speech of a non-commercial
nature and that the First Amendment protects such speech.
We hold that the law does not violate the First Amendment
and affirm the trial court’s ruling on this point.


Standard of Review

We review arguments regarding the constitutionality of a
statute de novo. Shivaee v. Commonwealth, 270 Va. 112, 119,
613 S.E.2d 570, 574 (citing Wilby v. Gostel, 265 Va. 437,
440, 578 S.E.2d 796, 798 (2003); Eure v. Norfolk
Shipbuilding & Drydock Corp., 263 Va. 624, 631, 561 S.E.2d
663, 667 (2002)), cert. denied, ___ U.S. ___, 126 S.Ct.
626, 163 L.Ed.2d 509 (2005). Furthermore,

We are guided by the established principle that all acts
of the General Assembly are presumed to be constitutional.
In applying this principle, we are required to resolve
any Page 687 reasonable doubt regarding the
constitutionality of a statute in favor of its validity. .
. . [W]e will declare a statute null and void only when it
is plainly repugnant to a state or federal
constitutional provision.

In re Phillips, 265 Va. 81, 85-86, 574 S.E.2d 270, 272
(2003) (internal citations omitted).

Appellant seeks to challenge the validity of the VCCA on
its face. In normal contexts, one may challenge the
constitutionality of a statute only as applied to him. See,
e.g., County Court of Ulster County v. Allen, 442 U.S. 140,
154-55, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979).
However, facial challenges are sometimes allowed when an
appellant claims First Amendment protections.

As the Supreme Court recently said, “The First Amendment
doctrine of overbreadth is an exception to our normal rule
regarding the standards for facial challenges.” Virginia v.
Hicks, 539 U.S. 113, 118, 123 S.Ct. 2191, 2196, 156 L.Ed.2d
148 (2003).

The Supreme Court in Hicks described the overbreadth
doctrine in depth.

The showing that a law punishes a “substantial” amount of
protected free speech, “judged in relation to the
statute’s plainly legitimate sweep,” Broadrick v.
Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, [2918,] 37
L.Ed.2d 830 (1973), suffices to invalidate all enforcement
of that law. . . .

[The Supreme Court has] provided this expansive remedy
out of concern that the threat of enforcement of an
overbroad law may deter or “chill” constitutionally
protected speech — especially when the overbroad
statute imposes criminal sanctions. . . .

[H]owever, there comes a point at which the chilling
effect of an overbroad law, significant though it may be,
cannot justify prohibiting all enforcement of that law
— particularly a law that reflects “legitimate
state interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct.”
[Broadrick], 413 U.S. at 615, 93 S.Ct. 2908[, 2917]. Page
688 For there are substantial social costs created by
the overbreadth doctrine when it blocks application of a
law to constitutionally unprotected speech, or especially
to constitutionally unprotected conduct. To ensure that
these costs do not swallow the social benefits of
declaring a law overbroad, we have insisted that a law’s
application to protected speech be substantial, not only
in an absolute sense, but also relative to the scope of
the law’s plainly legitimate applications before applying
the strong medicine of overbreadth invalidation.

Id. at 118-20, 123 S.Ct. at 2196-97 (emphasis in original)
(internal quotations and citations omitted except when
appearing within quotation).[fn4]

Thus, a law is unconstitutionally overbroad under the
First Amendment when it prohibits a substantial amount of
protected speech, either absolutely or as compared to the
unprotected conduct also encompassed by the statute.


The Relationship of Protected Speech and Code §

For a law to be unconstitutionally overbroad, it must
proscribe a substantial amount of protected speech.
Appellant contends that the sending of anonymous e-mails is
protected by the First Amendment and that the VCCA
proscribes Page 689 the sending of anonymous e-mails. We
take no position on the former contention because we
disagree with the latter.

The right to speak anonymously has a long and respected
history in First Amendment jurisprudence. In both Talley v.
California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559
(1960), and McIntyre v. Ohio Elections Comm’s, 514 U.S.
334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995), the Supreme
Court struck down requirements that an author’s name and
address appear on handbills. Both decisions cite the
history and power of anonymous or pseudonymous speech in
America, noting the Federalist Papers as early examples.

In contrast to requiring that an author’s name and address
appear on a handbill, the VCCA requires only that the sender
not intend “to falsify or forge electronic mail
transmission information or other routing information” in
connection with sending spam through an e-mail service
provider’s network. Code § 18.2-152.3:1(A)(1). That
is, the statute criminalizes the intentional falsification
of a sender’s identity so as to gain access to a service
provider’s network. Thus, the statute does not prevent
anonymous speech, as appellant argues, but prohibits
trespassing on private computer networks through
intentional misrepresentation, an activity that merits no
First Amendment protection.

Courts have consistently held that an e-mail service
provider’s computer network is private property and can be
subject to trespassing. See, e.g., Ralsky, 203 F.Supp.2d at
617 (“the sending of spam to and through an ISP’s e-mail
servers constitutes the tort of trespass to chattel in the
state of Virginia”); United States v. Gray, 78 F.Supp.2d
524, 532 (E.D.Va. 1999) (“[u]nauthorized access into a . .
. computer is analogous to breaking and entering in the
physical world”); America Online v. LCGM, 46 F.Supp.2d 444,
452 (E.D.Va. 1998) (“transmission of electrical signals
through a computer network is sufficiently `physical’
contact to constitute a trespass to property”); America
Online v. IMS, 24 F.Supp.2d 548, 550 (E.D.Va. 1998)
(sending unauthorized spam constitutes trespass to
chattels); CompuServe Inc. v. Cyber Promotions, Page 690
962 F.Supp. 1015, 1021 (S.D.Ohio 1997) (sending of
electronic signals with a computer can support a trespass

Unauthorized spam can be a particularly harmful type of
trespass to a computer network. Spam has been described as
“one of the most popular forms of advertising over the
Internet” and “the twenty first century version of
junkmail.” Ralsky, 203 F.Supp.2d at 606. In 2003 in an
attempt to address the harm caused by spamming, the United
States Congress passed 15 USC §§ 7701 to
7713, commonly known as the “CAN-SPAM Act.” Spam now
constitutes over half of all e-mail traffic, 15 USC §
7701(a)(2) (2003), and the Senate has found that spam will
cost corporations over $113 billion by 2007. S.Rep. No.
108-102 (2003), 108th Cong., 1st Sess. 2003, 2004 U.S. Code
Cong. & Admin.News 2348.

Courts have recognized the damage caused by spammers who
trespass upon the private property of ISPs. In Compu-Serve,
the court noted:

High volumes of junk e-mail devour computer processing
and storage capacity, slow down data transfer between
computers over the Internet by congesting the electronic
paths though which the messages travel, and cause
recipients to spend time and money wading through messages
that they do not want. It is ironic that if defendants
were to prevail on their First Amendment arguments, the
viability of electronic mail as an effective means of
communication for the rest of society would be put at

962 F.Supp. at 1028.

In State v. Heckel, 143 Wash.2d 824, 24 P.3d 404 (2001),
the Supreme Court of Washington wrote that:

To handle the increased e-mail traffic attributable to
deceptive spam, ISPs must invest in more computer
equipment. Operational costs likewise increase as ISPs
hire more customer service representatives to field spam
complaints and more system administrators to detect
accounts being used to send spam.

* * * * * * Page 691

The cost-shifting — from deceptive spammers to
businesses and e-mail users — has been likened to
sending junk mail with postage due or making telemarketing
calls to someone’s pay-per-minute cellular phone.

Id. at 409-10 (citations omitted).

The record in this case demonstrates the damage caused to
AOL by spammers such as appellant. AOL employs 30 people on
its spam response team and receives 7 to 10 million
complaints each day regarding spam. Over 1 billion pieces
of spam attempt to enter AOL’s private network daily.
Subscribers often cite spam as their reason for declining
to continue using AOL as their ISP. AOL typically blocks
70-80% of the e-mail traffic that attempts to pass into its
network because it comes from IP addresses that have a
history of sending spam. Of the e-mails that enter the
system, another 20-30% are filtered into subscribers’
dedicated spam folders. As noted above, appellant purposely
falsified his transmission data to evade AOL’s attempts to
protect its property interest in its servers and better
serve its customers.

The protection of private property and the right to keep
others off that property have long been recognized as a
fundamental sphere of state regulation. Blackstone wrote,

There is nothing which so generally strikes the
imagination, and engages the affections of mankind, as the
right of property; or that sole and despotic dominion
which one man claims and exercises over the external
things of the world, in total exclusion of the right of
any other individual in the universe.

William Blackstone, 2 Commentaries *2.

The common law is not without principle or precedent to
protect private property — as here codified in the
VCCA — applicable to a technological world.

The Supreme Court has consistently recognized the
constitutionality of laws prohibiting trespass. In Martin
v. Struthers, 319 U.S. 141, 147, 63 S.Ct. 862, 865, 87
L.Ed. 1313 (1943), the Court said that “[t]raditionally the
American law punishes persons who enter onto the property
of another after having been warned by the owner to keep
off.” The Court considered Page 692 free speech rights in
public shopping malls in Lloyd Corp. v. Tanner, 407 U.S.
551, 568, 92 S.Ct. 2219, 2228, 33 L.Ed.2d 131 (1972), and
said, “this Court has never held that a trespasser or an
uninvited guest may exercise general rights of free speech
on property privately owned and used nondiscriminatorily
for private purposes only.”

Rowan v. United States Post Office Dep’t, 397 U.S. 728, 90
S.Ct. 1484, 25 L.Ed.2d 736 (1970), upheld the
constitutionality of a law authorizing individuals to have
their names removed from mass mailing lists and imposing
penalties on organizations that failed to comply. The Court
noted that to allow mailings to continue after a property
owner has given notice that they must stop would be “to
license a form of trespass.” Id. at 737, 90 S.Ct. at 1490.
The opinion “reject[ed] the argument that a vendor has a
right under the Constitution or otherwise to send unwanted
material into the home of another” and recognized that “the
asserted right of a mailer . . . stops at the outer boundary
of every person’s domain.” Id. at 738, 90 S.Ct. at 1491.

The Supreme Court of Virginia addressed an analogous
conflict between property rights and free speech in Hall
v. Commonwealth, 188 Va. 72, 49 S.E.2d 369 (1948). In Hall,
the defendant was convicted of trespassing for distributing
religious materials in an apartment building after the
building management forbade him from doing so. The Court
upheld his conviction after a lengthy discussion of the
precedents, concluding that the rule prohibiting visitors
within the building unless a tenant allows their entry “is
valid and reasonable and does not infringe upon any right
or privilege guaranteed the accused by the Constitution. .
. .” Id. at 90, 49 S.E.2d at 378.

Appellant has conceded that he has no constitutional right
to use AOL’s servers to transmit his spam. Instead, he
maintains that the statute prohibits anonymous or
pseudonymous speech while not regulating other speech,
meaning the VCCA is a content based restriction on speech
and is thus subject to strict scrutiny. His reading of the
statute ignores the requirement that the forgery be
connected to “the transmission Page 693 of unsolicited
bulk e-mail through or into the computer network of an
electronic mail service provider or its subscribers.” Code
§ 18.2-152.3:1(A)(1). The statute prohibits the
falsification of the sender’s routing and transmission
information to gain access to a computer network that would
otherwise be inaccessible. In short, the statute prohibits
lying to commit a trespass.

As Rowan and Hall clearly establish, the First Amendment
does not prohibit a property owner from protecting his
property from a trespass. As the homeowner in Rowan could
stop the flow of unwanted junk mail into his home, now, an
ISP can prevent the entry of spam into its network. While
the method of delivery has changed, the underlying rights
of the parties remain the same. The First Amendment gives
no one the right to trespass on the property of another.
And if the Commonwealth can criminalize the trespass, then
certainly it can criminalize falsification to facilitate

As the statute in question here regards trespassing, not
speech, appellant’s reliance on ACLU v. Miller, 977 F.Supp.
1228 (N.D.Ga. 1997), is misplaced. Miller concerned a
Georgia statute that, in part, prohibited using an
“`individual name . . . to falsely identify the person'” in
connection with sending an e-mail. Id. at 1230 (quoting Ga.
Code Ann. § 16-9-93.1 (2006)) (omission in
original). Unlike the VCCA provisions at issue here,
Georgia’s statute directly prohibited using a pseudonym in
clear violation of established First Amendment
jurisprudence, and the district court enjoined enforcement
of the law. Because Virginia’s statute addresses
trespassing rather than the use of a pseudonym, Miller is
not relevant to this case.

The First Amendment argument appellant presents is not
relevant. The VCCA proscribes no speech. Rather, the
statute proscribes intentional falsity as a machination to
make massive, uncompensated use of the private property of
an ISP. Therefore, the statute cannot be overbroad because
no protected speech whatsoever falls within its
purview.[fn5] Page 694



Appellant contends that the VCCA violates the Dormant
Commerce Clause of the Constitution because it regulates
transactions that take place outside Virginia’s
jurisdiction.[fn6] Generally, “[a] state statute must be
upheld if it `regulates evenhandedly to effectuate a
legitimate local public interest, and its effects on
interstate commerce are only incidental . . . unless the
burden imposed on such commerce is clearly excessive in
relation to the putative local benefits.'” Edgar v. MITE
Corp., 457 U.S. 624, 640, 102 S.Ct. 2629, 2639, 73 L.Ed.2d
269 (1982) (quoting Pike v. Bruce Church, Inc., 397 U.S.
137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970))
(omission in original); see also Fredericksburg Auto
Auction v. Dep’t of Motor Vehicles, 242 Va. 42, 50, 406
S.E.2d 23, 28 (1991) (applying Pike balancing test).

While appellant contends that regulations which can have a
wholly extraterritorial effect are per se violations,
recent authorities have found such factors to be merely a
subset of the Pike balancing test, which is restated above
in the quote from Edgar. See Heckel, 24 P.3d at 411 (“the
extra territoriality analysis [is] appropriately regarded
as [a facet] of the Pike balancing test”); Jack L.
Goldsmith & Alan O. Sykes, The Internet and the Dormant
Commerce Clause, 110 Yale L.J. 785, 804-05 (2001) (“the
appropriate statement of the extraterritoriality concern is
that states may not impose burdens on out-of-state actors
that outweigh the in-state benefits”). Thus, the issues are
whether the VCCA has local benefits and whether the burden
imposed on interstate commerce by the law is clearly
excessive in relationship to those benefits.

That anti-spam laws, in general, produce local benefits is
unquestionable. The United States Congress has found that
Page 695 “[t]he convenience and efficiency of electronic
mail are threatened by the extremely rapid growth in the
volume of unsolicited commercial electronic mail.” 15
U.S.C. § 7701. Furthermore, Congress found that spam
costs recipients extra money, may expose recipients to
obscene material, costs e-mail providers money, and is
frequently fraudulent or deceptive.[fn7] Id. Numerous
courts have found that states have an interest in
protecting residents and service providers from the costs
of handling spam and the often fraudulent content it
presents. See Heckel, 24 P.3d at 411; MaryCLE, LLC v. First
Choice Internet, Inc., 166 Md.App. 481, 890 A.2d 818, 835
(Spec.App. 2006) (finding state interest in a personal
jurisdiction context); Ralsky, 203 F.Supp.2d at 621-22 (also
in a personal jurisdiction context). As the trial court
noted, “[t]he Commonwealth clearly has an interest in the
protection of the property interests of its citizens.”

As noted in Part V(B), supra, of this opinion, AOL expends
significant resources in efforts to protect its private
property from spammers and in so doing offer better service
to millions of its subscribers. We find that Virginia
properly has a significant local interest in protecting the
property of its citizens. The VCCA addresses that
legitimate interest.

With that finding, then, we next must determine what
burden, if any, on commerce that the VCCA presents. The
VCCA requires only that senders of unsolicited bulk e-mail
not intentionally “falsify or forge electronic mail
transmission information or other routing information.”
Code § 18.2-152.3:1(A)(1). Thus, as the trial court
noted, the only burden on any sender is to present truthful
transmission and routing information.

We agree with one pair of commentators who noted Page 696

Even assuming that the antispam laws do not significantly
further the state’s interest, it is hard to see how the
antispam laws burden interstate commerce at all. . . . Far
from burdening commerce, the truthfulness requirement
facilitates it by eliminating fraud and deception.
Compliance with the various antispam statutes is easy
compared to noncompliance, which requires the spammer to
incur costs of forging, re-mailing, and the like.

Goldsmith & Sykes, supra, at 819.

Indeed, it is in furtherance of commerce that the VCCA
requires truthful transmission data, enabling the
purchasing party to consummate a transaction. As the record
shows, the e-mails in this case appeared to come from
thousands of e-mail addresses at multiple “hello” domains
with thousands of different IP addresses, tactics used to
disguise spam and avoid detection by spam filters that ISPs
such as AOL employ. Notably, if an e-mail recipient
“clicked” to buy one of appellant’s offers, the recipient
was redirected to one of the thousands of websites
appellant established in his effort to evade AOL’s spam

Finally, we note one court’s observation that “Congress,
in enacting CAN-SPAM, expressly accorded the States the
right to regulate false and misleading e-mail
transmissions. 15 U.S.C. 7707(b)(1). If Congress itself was
satisfied that supplementary state legislation would impose
no undue burden on interstate commerce, this Court can
hardly presume to tell Congress it is wrong.” Beyond Sys.,
Inc. v. Keynetics, Inc., 422 F.Supp.2d 523, 535 (D.Md.

The effort required to violate the VCCA, and its
requirement of truthful transmission information, is
significant. No effort is required to comply with the law.
Applying the balancing test set forth in Pike, Virginia
does have a legitimate local public interest in the VCCA
and any burden to interstate commerce is incidental and
clearly not excessive. Thus, the VCCA does not violate the
Dormant Commerce Clause. Page 697



We reiterate that we consider constitutional questions de
novo, pursuant to the standard of review set forth above in
Part V(B), supra, of this opinion.

Appellant maintains that the VCCA is unconstitutionally
vague in three instances: 1) that the words “unsolicited”
and “bulk” in the phrase “unsolicited bulk electronic mail”
are undefined, and thus vague; 2) that the phrase
“electronic mail transmission information or other routing
information” is undefined, and likewise vague; and 3) that
the use of the acronym “UBE” for the earlier phrase
“unsolicited bulk electronic mail” is vague. In arguing
these points, appellant seeks to challenge the validity of
the statute on its face, rather than as applied to him.

As discussed above in Part V(A), supra, a litigant
generally may only challenge the validity of a statute as
applied to him and may not present the rights of third
parties. A party may present a facial challenge that a
statute is overbroad when the statute touches upon First
Amendment rights, and a party may likewise make a facial
challenge that a statute is vague when it potentially
chills First Amendment rights. Kolender v. Lawson, 461 U.S.
352, 357-58, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903
(1983); Broadrick, 413 U.S. at 611-12, 93 S.Ct. at 2915-16;
United States v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 36,
83 S.Ct. 594, 599-600, 9 L.Ed.2d 561 (1963).

In support of his argument that he is entitled to a facial
challenge on these grounds, appellant relies upon Reno v.
ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997),
and the decision of this Court in Coleman v. City of
Richmond, 5 Va.App. 459, 364 S.E.2d 239 (1988).

The Supreme Court addressed a First Amendment facial
challenge to two New York statutes “enacted to protect
minors from `indecent’ and `patently offensive’
communications on the Internet” in Reno, 521 U.S. at 849,
117 S.Ct. at 2334. Page 698 The core of the Court’s
decision turns on the inherent difficulties of sufficiently
defining such terms as “obscene” or “indecent” without
intruding on constitutionally protected speech.

In Coleman, we found unconstitutionally vague a city
ordinance which prohibited loitering with the purpose of
finding a prostitute. We noted therein that loitering is a
lawful act entitled to constitutional protection on First
Amendment grounds. 5 Va.App. at 464, 364 S.E.2d at 242
(citing Papachristou v. City of Jacksonville, 405 U.S. 156,
164, 92 S.Ct. 839, 844, 31 L.Ed.2d 110 (1972)). As a United
States District Court later stated regarding a challenge to
a Virginia statute, “Any attempt to prohibit loitering
potentially implicates First Amendment rights.” Lytle v.
Doyle, 197 F.Supp.2d 481, 488 (E.D.Va. 2001). Our denial of
a petition for rehearing in Coleman makes clear that the
decision was based on First Amendment grounds: “Coleman
raised freedom of association and first amendment rights.
Our decision . . . held the Richmond ordinance
unconstitutional on its face in light of first amendment
concerns.” Coleman v. City of Richmond, 6 Va.App. 296, 298,
368 S.E.2d 298, 300 (1988).

In Part V(B), supra, of this opinion, we hold that the
VCCA does not implicate First Amendment rights. Both Reno
and Coleman are premised upon such rights. Thus,
appellant’s reliance on these decisions to establish his
right to a facial challenge to the VCCA is misplaced.

We therefore will consider appellant’s arguments based upon
the law as applied to his conduct. “`[V]agueness challenges
to statutes not threatening First Amendment interests are
examined in light of the facts of the case at hand; the
statute is judged on an as-applied basis.'” Motley v.
Virginia State Bar, 260 Va. 243, 247, 536 S.E.2d 97, 99
(2000) (quoting Maynard v. Cartwright, 486 U.S. 356, 361,
108 S.Ct. 1853, 1857-58, 100 L.Ed.2d 372 (1988)); see also
Muhammad v. Commonwealth, 269 Va. 451, 501, 619 S.E.2d 16,
44 (2005) (citing Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191,
71 L.Ed.2d 362 (1982)). Page 699

As applied to appellant’s actions, the VCCA “is
unconstitutionally vague if it fails to `give the person of
ordinary intelligence a reasonable opportunity to know what
is prohibited. . . .'” County of Fairfax v. S. Iron Works,
Inc., 242 Va. 435, 444-45, 410 S.E.2d 674, 680 (1991)
(quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92
S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972)). A law can also
be vague if it allows for “arbitrary and discriminatory
enforcement.” Kolender, 461 U.S. at 357, 103 S.Ct. at

Applying that standard, we analyze each of appellant’s
three contentions seriatim.


The word “unsolicited” is not unconstitutionally vague
because, among states with laws relating to spam,
“unsolicited” has a practically universal definition.[fn9]
An e-mail is unsolicited if the recipient neither requested
nor consented to receive such e-mails and if the sender and
recipient have no preexisting business or personal
relationship. Generally included within this definition,
although sometimes explicitly stated in statutes, is the
notion that an organization may send Page 700 e-mails to
its members, employees, or contractors and that such
e-mails are not “unsolicited.”

Aside from the consistency with which other states define
the term, this seems to be the only logical meaning. No one
would argue that an e-mail is unsolicited if the recipient
requested or consented to its transmission. Furthermore,
once two parties have established a relationship,
communications cannot be considered unsolicited for
purposes of a criminal statute simply because one party did
not specifically request it of the other. Thus, an e-mail
is “unsolicited” if the parties have no previously existing
relationship, either business or personal, and the
recipient did not request or consent to its transmission.

Given the consistency and logical power of this definition
as applied to appellant, he would certainly have known that
these e-mails were unsolicited. Appellant sent thousands of
e-mails at random to AOL subscribers whose addresses were
among the 107 million stolen AOL e-mail addresses stored on
discs in his possession. Appellant did not compile a
mailing list by allowing people to register their names,
nor did he build this list from previous contacts with
people. He obtained a stolen database of AOL e-mail
addresses and sent his messages out blindly.

Appellant’s contention that “bulk” is a vague term also
fails because the law specifically defines the word. Code
§ 18.2-152.3:1(B)(1) establishes that transmission
“exceed[ing] 10,000 attempted recipients in any 24-hour
period” constitutes a felony. Appellant admits that this
section sufficiently defines how many e-mails constitute
“bulk” but maintains that for lesser amounts of spam, the
statute is vague. As noted above, the record reveals that
appellant sent 12,197 falsified e-mails on July 16, 2003;
24,172 falsified e-mails on July 19, 2003; and 19,104
falsified e-mails on July 26, 2003. Because the statute
clearly prohibits his conduct, appellant’s challenge fails.
Hoffman Estates, 455 U.S. at 495, 102 S.Ct. at 1191 (“A
plaintiff who engages in some conduct that is clearly
proscribed cannot Page 701 complain of the vagueness of
the law as applied to the conduct of others.”).


Appellant next contends that the phrase “electronic mail
transmission information or other routing information” is
vague. Initially, we note that the Supreme Court of
Virginia has already defined the word “route” as meaning “a
direction of travel from one place to another.” Virginia
Stage Lines, Inc. v. Commonwealth, 186 Va. 1066, 1076, 45
S.E.2d 318, 323 (1947). Routing information, then, would be
the information that directs the message from one place to
another, or the record of that travel.

“We give the words of a statute `their common, ordinary
and accepted meaning,’ absent an indication by the
legislature to the contrary.” Saunders v. Commonwealth, 48
Va.App. 196, 201, 629 S.E.2d 701, 703 (2006); see also
Stein v. Commonwealth, 12 Va.App. 65, 68, 402 S.E.2d 238,
241 (1991) (citing Lovisi v. Commonwealth, 212 Va. 848,
850, 188 S.E.2d 206, 208 (1972)). “[C]ourts are bound by
the plain meaning of clear statutory language.” Crawford v.
Haddock, 270 Va. 524, 528, 621 S.E.2d 127, 129 (2005)
(citations omitted); see also Last v. Virginia State Bd. of
Med., 14 Va.App. 906, 910, 421 S.E.2d 201, 205 (1992)
(“Where a statute is unambiguous, the plain meaning is to
be accepted without resort to the rules of statutory
interpretation.”). Words that have commonly accepted
meanings within their statutory context are not vague. See,
e.g., Gray v. Commonwealth, 260 Va. 675, 681, 537 S.E.2d
862, 865 (2000) (noting contextual meanings of “muffler”
and “silencer” in firearms statute).

Appellant maintains that the phrase “transmission
information” is vague. Black’s Law Dictionary defines
“transmit” as “[t]o send or transfer from one person or
place to another, or to communicate.” 1505 (7th ed. 1999).
Thus, the common, ordinary and accepted meaning of the term
is that it means the data necessary to transmit, or carry,
the e-mail from its origin to its intended recipient. Page

The VCCA’s requirement that the falsification or forgery of
the transmission information or routing information be
intentional further serves to protect that statute from a
vagueness challenge. As the Supreme Court noted in National
Dairy Products, “a requirement of intent [can serve] to
`relieve the statute of the objection that it punishes
without warning an offense of which the accused was
unaware.'” 372 U.S. at 35, 83 S.Ct. at 599 (quoting Screws
v. United States, 325 U.S. 91, 102, 65 S.Ct. 1031, 1036, 89
L.Ed. 1495 (1945)). This Court has similarly noted that
“[b]y requiring specific intent . . . [a] statute gives a
person of ordinary intelligence a reasonable opportunity to
know what is proscribed.” Woolfolk v. Commonwealth, 18
Va.App. 840, 851, 447 S.E.2d 530, 536 (1994) (citations
omitted); see also Hernandez v. Commonwealth, 12 Va.App.
669, 672, 406 S.E.2d 398, 400 (1991) (holding the intent
requirement, in part, makes constitutional a statute
prohibiting wearing of mask in public).

In National Dairy Products, the Court also held the
challenged statute constitutional because the statute
“listed as elements of the illegal conduct . . . the intent
to achieve a result . . . [and] also the act . . . done in
furtherance of that design or purpose.” 372 U.S. at 35, 83
S.Ct. at 599. The VCCA operates similarly. It establishes
the illegal conduct (lying to commit a trespass on computer
servers), identifies an act done in furtherance
(falsification of routing or transmission information), and
requires the act be done intentionally.

Here, appellant intended to falsify his identity and the
origins of his e-mails in order to avoid detection by AOL’s
spam filters. The complicated machinations necessary to
achieve this criminal purpose negate any contention that
the phrase “transmission information or other routing
information” is vague. Appellant’s conduct is exactly the
conduct the statute seeks to criminalize, and appellant
intentionally undertook those acts.


Code § 18.2-152.3:1(A) of the VCCA contains the
phrase “unsolicited bulk electronic mail.” Subsection B
uses Page 703 the acronym “UBE” for the phrase quoted from
subsection A. For example, a sentence in subsection B
begins: “The volume of UBE transmitted exceeded 10,000
attempted recipients in any 24-hour period. . . .”
Appellant maintains the use of the acronym renders the
statute impermissibly vague.

Recently, the Supreme Court of Virginia set out principles
of statutory interpretation here applicable:

Generally, the Court “will look to the whole body of [a
statute] to determine the true intention of each part.”
McDaniel v. Commonwealth, 199 Va. 287, 292, 99 S.E.2d 623,
627 (1957); accord Rockingham Coop. Farm Bureau, Inc. v.
City of Harrisonburg, 171 Va. 339, 344, 198 S.E. 908, 910
(1938). “[A] statute should be read and considered as a
whole, and the language of a statute should be examined in
its entirety to determine the intent of the General
Assembly from the words contained in the statute.” Dep’t
of Med. Assistance Servs. v. Beverly Healthcare of
Fredericksburg, 268 Va. 278, 285, 601 S.E.2d 604, 607-08
(2004). “In doing so, the various parts of the statute
should be harmonized so that, if practicable, each is
given a sensible and intelligent effect.” Colchester Towne
Condo. Council of Co-Owners v. Wachovia Bank, N.A., 266
Va. 46, 51, 581 S.E.2d 201, 203 (2003) (citing VEPCO v.
Prince William County, 226 Va. 382, 387-88, 309 S.E.2d
308, 311 (1983)).

Oraee v. Breeding, 270 Va. 488, 498, 621 S.E.2d 48, 52-53

More specifically, the acronym “UBE” is to be given meaning
“in the context in which it is used.” Dep’t of Taxation v.
Orange-Madison Coop. Farm Serv., 220 Va. 655, 658, 261
S.E.2d 532, 534 (1980). “[T]he context may be examined by
considering other language used in the statute.” City of
Virginia Beach v. Bd. Of Supervisors of Mecklenburg County,
246 Va. 233, 236-37, 435 S.E.2d 382, 384 (1993).

Applying these principles, the only reasonable
interpretation of the acronym within the statute is that it
means “unsolicited bulk electronic mail.” We hold that the
acronym “UBE” in the context used and in relation to the
other Page 704 language in the VCCA is not so vague that a
person of ordinary intelligence could fail to understand
its meaning.

For the reasons stated above, the VCCA is sufficiently
definite so as to not be unconstitutionally vague as
applied to appellant’s conduct.



Having concluded that the trial court had jurisdiction
over this case and that Code § 18.2-152.3:1 does not
violate the First Amendment, does not violate the Dormant
Commerce Clause, and is not unconstitutionally vague,
appellant’s convictions are affirmed.


[fn1] While appellant presented other challenges at trial as
to proof of venue and the sufficiency of the evidence,
those issues are not before this Court.

[fn2] Internet users can obtain e-mail service from a
different entity than their ISP. For simplicity here,
however, we use the term ISP to refer to e-mail service
providers as well.

[fn3] The user name is generally that portion of an e-mail
address appearing before the “@” symbol.

[fn4] In Hicks, the Court further held that state law
governs whether a party has standing to assert in state
court a facial challenge under the First Amendment.
“Whether Virginia’s courts should have entertained this
overbreadth challenge is entirely a matter of state law.”
Id. at 120, 123 S.Ct. at 2197. Since Hicks, no Virginia
appellate court has addressed whether Virginia (as opposed
to federal) law authorizes facial claims asserting
overbreadth. See Muhammad v. Commonwealth, 269 Va. 451,
497, 619 S.E.2d 16, 42 (2005) (quoting Hicks but not
addressing, in any detail, the appellant’s facial
overbreadth challenge to Virginia’s anti-terrorism statutes
because the appellant had “confin[ed] his argument to
vagueness”), cert. denied, ___ U.S. ___, 126 S.Ct. 2035,
164 L.Ed.2d 794 (2006). We need not resolve the issue in
this case, however, because of our holding that the claim
fails on the merits in any event.

[fn5] We also note that AOL’s servers, obviously, do not
constitute a public forum.

[fn6] Appellant, therefore, does not contend that the law
discriminates against interstate commerce in favor of
intrastate commerce, and we do not engage in such an

[fn7] In fact, the Senate Report that accompanied the
CAN-SPAM act found that two-thirds of all spam contains
fraudulent content. S.Rep. No. 108-102, at 2-3 (2003),
108th Cong., 1st Sess. 2003, 2004 U.S. Code Cong. &
Admin.News 2348.

[fn8] Appellant’s only challenge under the “arbitrary and
discriminatory enforcement” prong of the vagueness test is
a facial one to the misdemeanor provisions of the statute,
under which appellant was not charged. As appellant is
entitled only to an as-applied challenge, we need not
discuss the second prong.

[fn9] See, e.g., Ark. Code Ann. § 4-88-602 (West
Supp. 2005) (“`Unsolicited’ means without the recipient’s
express permission, except that commercial electronic mail
is not unsolicited if the sender has a preexisting business
or personal relationship with the recipient”); Mich Comp.
Laws. Ann. § 445.2502 (West Supp. 2006)
(“`Unsolicited’ means without the recipient’s express
permission. An e-mail is not unsolicited if the sender has
a preexisting business or personal relationship with the
recipient. An e-mail is not unsolicited if it was received
as a result of the recipient opting into a system in order
to receive promotional material.”); N.C. Gen.Stat. Ann.
§ 14-453 (West 2000) (“`Unsolicited’ means not
addressed to a recipient with whom the initiator has an
existing business or personal relationship and not sent at
the request of, or with the express consent of, the