New Virginia law makes spam a felony

Virginia's governor has signed into law one of the toughest antispam bills in the country, but some privacy advocates wonder if it will hold up in court and whether -- tough as it is -- it goes far enough.

The new Virginia law, signed Tuesday by Gov. Mark Warner, raises the penalties for the worst purveyors of unsolicited e-mail to a Class 6 Felony, which carries a prison term of one to five years and various fines. It also permits seizure of ill-gotten profits and income from the sale of spam advertising, similar to antiracketeering laws, according to Kevin Hall, the governor's deputy press secretary.

But Stephen Keating, the executive director of The Privacy Foundation, a nonprofit advocacy group in Denver, said the new law could present challenges in enforcement in the cases of spammers who are in other states or countries.

"I think they should be applauded for forcing the issue," Keating said. "I think it will just get bumped higher and higher. It will undoubtedly end up at the Supreme Court. Spammers claim this is a free-speech activity."

Jason Catlett, president of Junkbusters, a privacy advocacy group, said he's not sure that creating stiffer criminal penalties for the worst offenders is the best answer to the growing spam problem.

Instead, he said, all spam should simply be banned, whether from low- or high-volume mailers.

"I think that the right approach is to say that all spamming is wrong," Catlett said. "Certainly spammers break a lot of laws. But I'm not sure that this is going to cause a substantial improvement. I think the intent of the criminalization was to provide a big stick to beat the worst offenders with."

The new antispam provisions of the Virginia Computer Crimes Act make it the toughest such law in the U.S., according to the governor's office.

"Half the world's Internet traffic passes through the Commonwealth of Virginia, so it is appropriate that we give our prosecutors tools to go after this costly and annoying crime," Warner said in a statement. "Before this law, legal action was almost not worth the trouble for prosecutors -- which is no message to send to our Internet industry in its fight against the spam invasion."

Other states have enacted laws making e-mail abuse a civil crime. Similar bills have been considered on the national level during the past few years, but no federal action has yet been taken.

So far, Warner said, the civil penalties haven't prevented spam from being sent. That warrants the new tougher approach to the problem.

The law targets only the most egregious offenders and can't be applied to an innocent party who happens to send out a large mailing, according to Warner.

Under the law, senders can be prosecuted if they consciously alter either e-mail header or other routing information and attempt to send either 10,000 messages within a 24-hour period or 100,000 in a 30-day period. The sender can also be prosecuted if more than US$1,000 in revenue is generated from a specific transmission, or $50,000 from total transmissions.

The underlying Virginia statute that the new felony penalties enhance has survived previous constitutional challenges in cases brought by both America Online and Verizon Communications, according to the governor's office. Because it's grounded on e-mail passing through Virginia-based Internet service providers, the statue allows prosecutors and the Virginia attorney general to legally reach out to spammers in other states and jurisdictions, said the governor's office.

Marvin Benn, an intellectual property attorney at Much Shelist Freed Denenberg Ament & Rubenstein, said the new Virginia bill strengthens the state's existing antispam provisions, but in doing so, it may have taken on too much. By making high-volume spamming a criminal act, "that presents some real constitutional issues," Benn said.

"I don't really think they can do it," he said of the felony provisions. "It seems to be a violation of the First Amendment."

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