Can Virginia Bake Spam? An Interview With Virginia Attorney General Mark Earley

Will Virginia save the Internet from mass, unsolicited, bulk commercial e-mail? Or was the state’s recent passage of an anti-spam bill another case of well-intentioned but misguided Internet legislation?

Under the new bill, which Gov. Jim Gilmore has promised to sign before the end of the month, spamming is a misdemeanor punishable by fines of up to $500, and sending unsolicited bulk e-mail that causes more than $2,500 in losses could be prosecuted as a felony.

Many people think the law will be impossible to enforce on a medium without borders. Critics also contend it may open legitimate businesses to frivolous lawsuits.

While Virginia Attorney General Mark Earley ducked the enforcement question in a recent interview with iMarketing News, he promised that the governor’s goal isn’t to put an end to e-mail marketing, but to protect legitimate marketers while reigning in the Internet’s “bad actors.”

iMarketing News: What prompted Virginia’s new anti-spam law?

Mark Earley: Virginia’s new spam law is a result of the leadership of Gov. Jim Gilmore and his new Secretary of Technology Donald Upson. The law that just passed the General Assembly was a recommendation of the Governor’s Commission on Information Technology – a commission made up of many leaders in the high-tech industry.

IM: How do you define spam under the new law?

ME: Essentially, it is unsolicited, fraudulent, bulk e-mail. The new law calls for civil penalties for damages caused by such unsolicited, fraudulent, bulk e-mail. Those penalties can be sought by individuals and/or electronic mail service providers. The law also allows for the state to prosecute in certain instances.

IM: How aggressively do you plan to go after spammers? You said you would enforce the bill “when and where appropriate.” Will you be more specific?

ME: In Virginia, locally elected commonwealth’s attorneys prosecute the majority of criminal law violations. However, the 1999 General Assembly appropriated funds to create the Attorney General’s Computer Crime Unit. This unit, which was also a recommendation of Gov. Gilmore’s Commission on Information Technology, will begin a long-term vision of spearheading Virginia’s computer-related criminal law enforcement in the 21st century. I intend to work closely with commonwealth attorneys by assisting them in determining which spam violation cases can be successfully prosecuted and providing them with any resources they need.

IM: The Internet’s borderless nature renders it practically impossible to regulate. How will you enforce this law in, say, California or Canada?

ME: There is no doubt the Internet is a new frontier for the 21st century. The new legislation amends a statute establishing jurisdiction over any “person” who transmits or causes the transmission of fraudulent, unsolicited bulk e-mail to or through an electronic mail service provider’s computer network located in Virginia. Violators of the new Virginia Computer Crimes Act would then have to answer to the Virginia court system.

I agree with Gov. Gilmore’s philosophy that minimal government involvement and intervention is best. Unnecessary regulation of commercial activities distorts development of the electronic marketplace by decreasing supply and raising the cost of products and services for consumers. It is important we have effective laws on the books, such as the anti-spam law, to address these issues and reflect today’s new technology.

This is important to Virginia because we are the Internet capital of the world, with more than half the Internet traffic running through our state. This new law will give Virginia-based Internet service providers the tools they need to go after spammers and shut them down. This is good for Virginia’s high-tech companies and it is good for consumers.

IM: Some would say the market should, and is, taking care of the spam problem without law enforcement’s intervention. What’s your reaction?

ME: In many, if not most, cases the market will address the spam problem. New software packages are being developed to protect the individual user and Internet service providers – many of whom are headquartered here in Virginia – are diligent about notifying and warning their customers.

But the new laws are necessary to protect legitimate Internet users and companies from the bad actors out there who have nothing but disruptive and sometimes criminal intentions. The laws and legal system have evolved over the years to deal with new and different crimes – this is simply a continuation of that evolution.

We in Virginia government believe we can and should be partners in promoting a high-tech business environment that is conducive to innovative ideas and growth and free from destructive and fraudulent elements.

IM: Some spam – porn, pyramid schemes, etc. – is obvious and everybody agrees it should be stopped, but people often don’t remember opting onto a legitimate e-mail list. Doesn’t this new law create the possibility of knee-jerk lawsuits tying up the system and hurting legitimate marketers?

ME: There is always the possibility of frivolous lawsuits. That has always been one of the challenges of the American justice system, which is considered the best and most fair in the world. If a consumer has subscribed or authorized being on an e-mail list, the sender or company should logically have a copy of that authorization. We do not view this as being a major problem.

IM: The Internet is rapidly evolving into an essentially free medium supported by advertising. For example, $19.95 doesn’t cover the costs of access, ad dollars do. Some people would say that though you’re going after fly-by-nights and scam artists, you’re actually threatening legitimate marketers or the people from whom the dollars for Internet growth will ultimately come. Reaction?

ME: I am interested in protecting legitimate businesses and users, not interfering with them. It is the fraudulent, bulk, unsolicited e-mail that slows down communications, drains resources and can seriously harm networks. Virginia wants to aggressively and proactively ensure the new frontier of Internet commerce is not hampered by those who try to abuse it.

IM: Some would also say you’re killing a fly with a sledge hammer. How do you react?

ME: Years ago, various consumer protection laws were put on the books that were criticized by some as being heavy-handed and overbearing. Today, many of those laws are seen as prophetic and have protected thousands of consumers and legitimate businesses.

We are at the turn of a new millennium, with a new technology that promises to be of great benefit to households, consumers, educators, private business and even the public sector. Those of us in positions of responsibility are sworn to uphold and protect the laws of the Commonwealth.

I think we will look back in five to 10 years and see that Gov. Gilmore and Virginia were truly visionary in the area of high technology, striking the appropriate balance between the free market and consumer protection. In the end, everyone benefits.

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