Virginia Gets Tough With Spammers

Lawmakers in Virginia, a state through which half of all Web-surfing Americans receive their online access, passed hard-hitting legislation this week that makes it a crime to send mass unsolicited e-mail on the Internet.

The bill will become law with the already-promised signature of Gov. Jim Gilmore, whose office originally introduced the legislation. Under the law, spamming would be a misdemeanor punishable by fines of up to $500, and “malicious” spamming that causes more than $2,500 in losses for the victim could be prosecuted as a felony. The bill is the first by any state covering both civil and criminal penalties for spamming. California enacted a law criminalizing spamming last year, and other states have passed laws making it grounds for a lawsuit.

Virginia's law would let Internet service providers in the state, such as America Online Inc., Dulles, VA, sue spammers whose mass e-mailings cause a computer system to crash — to the tune of $10 per e-mail message or $25,000 per day, whichever is greater. Individuals would be able to sue for the lesser of either $10 per message or $25,000. The legislation also makes it illegal to sell or distribute software designed to help spammers conceal their identities or to possess such software with the intent to sell.

“We're certainly supportive of the law,” said AOL spokesman Rich D'Amato, who argued that the Net service giant will now be able to better protect its members from “fraudulent, deceptive” mailings. In the past, the company has sued spammers for damages caused by trespass.

AOL is the country's No. 1 online service provider with 16 million subscribers, and its site received 29 million unique visits in January, according to the latest figures from Media Metrix Inc. In 1998, AOL bought CompuServe Interactive Services, with 2 million subscribers. Two other Internet service providers — PSINet and MCI WorldCom Co. subsidiary UUNet Technologies Inc. — are based in Fairfax, VA.

The law impacts spammers well beyond the boundaries of the Old Dominion state, however. Virginia, like most states, has a “long-arm statute” that defines how its laws apply beyond state borders, said Todd Reid, special assistant to the Virginia secretary of technology. Under the new spam legislation, anyone who sends an unsolicited bulk e-mail through the facilities of a Virginia-based e-mail service provider is committing an “act” in Virginia. The law also applies to universities or other institutions in Virginia that provide e-mail services.

Some industry players expressed concerns about Virginia's move.

“Spam may be annoying, and the Internet industry has to find ways to eliminate it. But it doesn't hurt anybody and it shouldn't be a crime,” said Andy Sernovitz, president of the Association for Interactive Media, Washington.

Technology is available that blocks spam at the ISP level or helps consumers deal with the problem on their computers, Sernovitz said. And as AOL has exhibited with its series of civil suits against spammers, statutes already are in place to address the problem. The new law raises constitutional questions as well, he said.

“When the government outlaws how you can say something, that's one step before outlawing what you can say,” he said.

With about half of the country's Internet infrastructure routed through it, Virginia naturally has a big stake in the health of e-commerce. Hi-tech industries have contributed a large part of the state's economic growth in recent years, with Internet-related firms leading the way, said Jonathan Amacker, spokesman for Virginia Attorney General Mark Earley.

“We want to do everything we can to maintain a business environment that's healthy and promotes hi-technology growth,” Amacker said. “One way we can do that is make sure we have laws in place that protect and promote legitimate commerce.”

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