Virginia Senate passes anti-spam legislation

Monday, February 22, 1999

(Editor's note: This story corrects and updates an earlier version that said the Virginia Senate was still considering an anti-spam bill, which it had actually passed.)

The Virginia Senate approved an anti-spam bill on Feb. 19 that criminalizes the sending of forged unsolicited bulk e-mails and the selling of software that enables spammers to send forged bulk e-mails.

Under the measure introduced by Delegate Kenneth Plum, individuals who send unsolicited e-mails and falsify their return addresses would have to pay $10 for each message up to a maximum of $25,000 per day.

The bill is designed to crack down on the practice of spamming — the sending of unsolicited e-mail.

Another provision in the measure would outlaw the selling, giving, distributing or possessing of software “primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information.”

The Virginia House passed the measure on Feb. 4 by a 100-0 vote. The Senate passed the measure with a few minor amendments on Feb. 19 by a 40-0 vote.

Plum says that the restriction of spam is not a free-speech issue because sending unsolicited commercial e-mail is a “form of invasion of privacy and a nuisance.”

“We have crafted this bill carefully so that it does not deal with legitimate electronic commerce which we promote here in Virginia, the Internet capital of the world,” Plum said.

Robert O'Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression and an expert in commercial free-speech law, says the bill appears to be “very carefully defined.”

“Under the commercial-speech doctrine, false and misleading commercial speech is not entitled to First Amendment protection,” he said. “Therefore, if this measure is interpreted to apply only to untruthful, unsolicited commercial e-mail, then it probably would survive judicial scrutiny.”

However, O'Neil said that “if the bill is applied to noncommercial postings from a listserv, then there would be serious problems.”

John Mozena, co-founder of the anti-spam group Coalition Against Unsolicited Commercial E-mail, supports the Virginia measure but says it does not go far enough.

“This measure, though a step in the right direction, is not a solution because a lot of spam does not contain falsified or forged domain information,” Mozena said.

Mozena added that any anti-spam legislation must be carefully drawn so that it doesn't “criminalize or punish legitimate anonymous e-mail messages from support groups to their members.”

The bill now goes back to the Virginia House to approve the Senate's amended version.