Virginia’s Anti-Spam Law Could Result in Criminal Penalties

NEW YORK Virginia Gov. Mark R. Warner Tuesday signed two bills to raise the penalty to a felony for high-volume, unsolicited bulk e-mail, or spam.

The new anti-spam provisions of the Virginia Computer Crimes Act make it the toughest such law in the United States. Under the new statute (SB 1139/HB2290), hard-core hackers and spammers—those who produce the most offensive and persistent e-mail solicitations, actually aimed at crippling servers—will now face a class 6 state felony, which carries a prison term of five years and a fine.

Other actions that can trigger penalties include: forging e-mail header and routing information; sending huge volumes of bulk e-mails; generating substantial monetary proceeds from spamming; and employing a minor to be an affiliate in the spamming process. In addition to a class 6 felony, violators could face monetary fines and the seizure of profits, computer equipment and all property connected with the crime. Also, since the law regards e-mail passing through the Virginia-based Internet Service Providers, it allows prosecutors and the Attorney General to reach out to spammers in other states and jurisdictions.

Twenty-six states have enacted laws prohibiting spam. With the exception of Virginia, each of these laws involve a civil statute designed to empower citizens, businesses and a few Attorneys General to sue spammers and collect statutory and actual damages, and in some cases, civil fines.

Congress is currently considering spam legislations. Earlier this month, U.S. Senators Conrad Burns (R-Mont.) and Ron Wyden (D-Ore.) introduced a bill that is designed to protect consumers from unsolicited commercial e-mails [IQ Daily Briefing, April 10]. Under the bipartisan legislation, called the CAN-SPAM Act (“Controlling the Assault of Non-Solicited Pornography and Marketing Act), all unsolicited marketing e-mail would be required to have a valid return e-mail address so recipients could easily ask to be removed from mass e-mail lists. Once notified, marketers would be prohibited from sending any further messages to a consumer who has asked them to stop.

The federal legislation contains strong enforcement provisions that give the Federal Trade Commission power to impose civil fines on those who violate the law, and State Attorneys General the ability to bring suit on behalf of citizens who have been victimized by unscrupulous marketers.