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Special Reports
Lead Generation
Virginia Spam Law Could Land Marketers In Prison
By Brad Finkelstein
NEW YORK-Those who seek to generate leads through bulk e-mail solicitations are
having to deal with a new law in Virginia that many consumer groups consider to be a model to be copied elsewhere.
In other news on the legal front, an online mortgage lender, E-Loan, has joined
with consumer groups to support tougher privacy laws in California. The coalition, with the support of that state's
attorney general, is moving to put a privacy initiative on the ballot in March 2004.
The Virginia law, which was recently signed by Gov. Mark Warner, has been described
by many as the toughest anti-spam legislation in force. But the new law merely amends a state law that had been
in effect since 1999.
That law made it illegal to send unsolicited bulk e-mail containing falsified
routing information. It allowed state courts to exercise personal jurisdiction over a nonresident who uses a computer
or computer network located in Virginia.
The new law increases the penalties for sending bulk spam. In addition, unlike
laws in other states, which are civil statutes, the new law in Virginia is a criminal statute, which makes violations
of certain provisions a Class 6 felony. Being found guilty could land one in jail for between one and five years.
It is a Class 1 misdemeanor to use a computer or network to falsify or forge transmission
or routing information when sending an unsolicited bulk e-mail.
As Gov. Warner noted as he signed the new law, "The underlying Virginia statute
that the new felony penalties enhance has survived previous constitutional challenges brought by both America Online
and Verizon.
"And because it is grounded on e-mail passing through Virginia-based ISP's
(Internet service provider's), the statute allows prosecutors and the Virginia attorney general to legally reach
out to spammers in other states and jurisdictions."
The SpamCon Foundation, a Washington-based advocacy group, has created a legal
fund to assist parties who become involved in spam-related litigation.
The group's first initiative is to assist in the defense of Spews.org and other
online anti-spam groups whose lists are used by some to put blocks on e-mail.
EmarketersAmerica.org is suing Spews.org in the U.S. District Court for the Southern
District of Florida. The group was incorporated in March in Boca Raton, Fla., and claims to represent e-mail marketers,
according to published reports.
The legal fund will assist the defendants in asserting their rights to publish
details of alleged spam activity.
Ted Gavin, treasurer of the SpamCon Foundation, said the group believes that "spam
is a problem that can only be solved on three fronts: technical, social and legal.
"We believe that it is in the public interest for this case to be decided
on the merits, as there are few proven legal principals with respect to the rights of network owners and individuals
involved in the debate on spam. For that to happen, however, both sides must have access to competent legal counsel."
The California effort is a more overarching effort that would require financial
institutions to have consumers opt-in before being able to sell or share personal financial information.
Among the supporters of the effort, besides E-Loan, is the American Association
of Retired Persons. These supporters have formed a group, Californians for Privacy Now.
AARP manager of advocacy, Lupe de la Cruz, said, "Weak financial privacy
laws leave consumers vulnerable to identity theft, aggressive marketing practices and fraud."
To qualify for the ballot, the campaign must collect 373,816 signatures from registered
voters in California by Aug. 3, 2003.
This initiative supplements an effort to get a bill passed by the California Legislature.
However, the state Assembly has blocked efforts in this area.
Chris Larsen, chairman and chief executive of E-Loan, said, "Consumers are
fed up with the stalemate over privacy in Sacramento. We are taking the steps necessary to ensure that Californians
get the privacy protections they want and deserve, in case the legislature again fails to deliver."
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