Va. Targets Senders of Bulk E-Mail
By Michael D. Shear
A new Virginia law aims to protect the nation's Internet users from so-called spamming by making it a crime to send massive amounts of junk e-mail through the state's many online service providers.
Gov. James S. Gilmore III (R) has said he will sign legislation passed by the General Assembly that allows prosecutors to go after the purveyors of bulk e-mail and gives Virginia e-mail providers the right to collect damage awards from the electronic offenders.
"Some unscrupulous individuals misuse the Internet's electronic mail capabilities by deluging Internet users and their [service providers] with unwanted advertisements for dubious products, pyramid schemes and pornography," said David Botkins, a spokesman for the state attorney general. "This sort of fraudulent bulk e-mail hurts consumers and undermines their confidence and trust in the Internet."
Enacting the law in Virginia makes a stronger impact than it would in most other states because Virginia is home to such a concentration of Internet companies, particularly Loudoun County-based America Online, which provides e-mail addresses to 16 million subscribers. AOL, which endorsed the legislation, already has used other laws to fight spam, most recently taking a dozen companies to court in several states.
"We are like a lioness trying to protect our cubs. This statute gives us stronger teeth," AOL Senior Vice President George Vradenburg said.
The law would target spammers in two ways: by making serious incidents a felony punishable by fines or jail time and by giving service providers or individual e-mail users the chance to seek civil penalties.
Several other states have given companies the ability to file lawsuits against bulk e-mailers, but California is the only other state to have criminalized the practice.
Passage of the Virginia legislation was greeted with dismay by civil liberties groups and Internet free-speech advocates, who say the number of e-mail service providers in the state heightens the law's threat to a free exchange of ideas on the global computer network.
"The long arm of Virginia's law would have a very long reach," said Deirdre Mulligan, staff counsel at the Center for Democracy and Technology. "Having criminal penalties for constitutionally protected speech is a problem. It runs afoul of the Constitution."
Kent Willis, executive director of the Virginia chapter of the American Civil Liberties Union, said yesterday that his group will consider challenging the law.
"This is largely a political move to indicate to Internet providers how friendly Virginia will be towards their interests," he said. "If the First Amendment of the Constitution is in the way of that, so be it."
Electronic mail is among the most popular features of online services, providing virtually unlimited and almost instantaneous communication. But many users complain about being inundated with commercial appeals. Companies providing e-mail service have been forced to upgrade equipment to deal with the massive volume of junk mail, and some providers have seen their computer systems slow down or even crash.
"It's sort of like somebody putting 200 tons of mail on your doorstep. There's so much mail that they can't get into the house," Vradenburg said.
Todd Reid, a spokesman for the office of Virginia's secretary of technology, which promoted the legislation, said the law is not targeting free speech. "It's about the misuse of a private computer system and the abuse of that system," Reid said.
Many of those systems are physically located in Northern Virginia, where Internet technology companies have been flocking in recent years. In addition to AOL, the state is home to CompuServe, PSINet and UUNet, MCI Worldcom's Internet and e-mail provider. Reid estimates that 50 percent of the nation's e-mail customers are served by Virginia companies.
Criminal punishments for spammers would range from minor misdemeanors to felonies, depending on the severity of the damage. Under the statute, e-mail companies affected by spamming also could seek civil penalties of $10 a message or $25,000 a day, whichever is greater. Those amounts are much higher than damages provided under other state or federal laws already on the books. Individuals also would be eligible to seek small penalties.
The anti-spam legislation also targets the use of anonymous or fraudulent identities to disguise the true source of bulk e-mail, another favorite ploy of spammers. Anyone who uses a false online identity for that purpose would be subject to penalties, and it would be illegal to own software that helps people falsify their online identities.
"This legislation will help ensure our success in Internet policy and the technology sector of our economy," Gilmore said yesterday.
Del. Kenneth R. Plum (D-Fairfax), a key sponsor of the legislation, said he and his colleagues expected criticism from free-speech advocates.
"Free speech is not absolute," Plum said. "You can't yell fire in a crowded theater. You can't send bulk e-mail to a degree that you disable someone's computer equipment."
© Copyright 1999 The Washington Post Company