United States: Virginia Passes the First Felony "Anti-Spam" Law

On April 29, Virginia enacted the nation's harshest law against unsolicited commercial e-mail, or "spam." Virginia's new law – a revision to an existing spam statute – is the nation's first to permit felony prosecutions and seizure of "spammer" assets. Although 30 states (including Virginia) already regulate spam, spam has increased to the point that it now makes up roughly 50% of all e-mail traffic. Virginia's new law represents a real change of legal tactics: where previous laws focused primarily on civil actions to redress "damage" to network operators, Virginia's law permits prosecutors to attack spammers and their assets regardless of financial impact to users. The law takes effect July 1.

Virginia's law reserves the new criminal penalties for spam that uses deceptive addressing – which, according to a Federal Trade Commission study released in April, is a feature of most spam. The law makes it a Class 1 misdemeanor to send spam "with the intent to falsify or forge electronic mail transmission information or other routing information in any manner." The penalty rises to the level of a Class 6 felony, punishable by up to five years imprisonment, if:

• the volume of unsolicited bulk e-mails exceeds 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; or
• the revenue generated from a specific transmission exceeds $1,000 or the total revenue generated from all transmissions to any e-mail service provider exceeds $50,000.

In addition, the law makes it a crime to sell or market software used to falsify e-mail transmission information. The law authorizes the seizure of all proceeds, computer equipment, and software used in connection with a violation.

Some commentators have noted that the law makes no distinction between commercial and non-commercial bulk e-mail and, as a result, may operate to restrict certain bulk e-mail distributions by political parties, charities, and other common, non-commercial bulk e-mailers. This concern is likely overblown for two reasons: first, the law specifically exempts e-mails sent by organizations to their members; second, the criminal provisions apply only to deceptively-addressed spam.

Virginia's law is likely to impact bulk e-mailers operating beyond the borders of Virginia. The law applies to transmissions made "through or into the computer network of an electronic mail service provider or its subscribers." The Virginia Attorney General could seek to enforce the law against any unsolicited bulk e-mails passing through the many Virginia-based computer networks, even those originating in a state other than Virginia and directed at non-Virginia residents – a significant concern, given that roughly half of all Internet transmissions are routed through Northern Virginia.

You can view the full text of Virginia's new anti-spam law at the following internet address: http://www.spamlaws.com/state/va.html.