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Virginia's governor has signed into law one of the toughest antispam bills in the country, but some privacy advocates wonder whether it will hold up in court and whether--tough as it is--it goes far enough.

The new Virginia law, signed Tuesday by Governor Mark Warner, categorizes the worst forms of unsolicited e-mail purveying as class 6 felonies; conviction of such a felony carries a prison term of one to five years and various fines. It also permits seizure of ill-gotten profits and income from the sale of spam advertising, similar to antiracketeering laws, according to Kevin Hall, the governor's deputy press secretary.

Enforcing the Rules

But Stephen Keating, the executive director of The Privacy Foundation, a nonprofit advocacy group in Denver, said that the new law could be difficult to enforce against spammers who are in other states or countries.

"I think they should be applauded for forcing the issue," Keating said. "I think it will just get bumped higher and higher. It will undoubtedly end up at the Supreme Court. Spammers claim this is a free-speech activity."

Jason Catlett, president of Junkbusters, a privacy advocacy group in Green Brook, New Jersey, expressed doubt that creating stiffer criminal penalties for the worst offenders is the best answer to the growing spam problem.

Instead, he said, all spam should simply be banned, whether from low- or high-volume mailers.

"I think that the right approach is to say that all spamming is wrong," Catlett said. "Certainly spammers break a lot of laws. But I'm not sure that this is going to cause a substantial improvement. I think the intent of the criminalization was to provide a big stick to beat the worst offenders with."

Tough Enough?

The Virginia Computer Crimes Act's new antispam provisions make it the toughest such law in the United States, according to the governor's office.

"Half the world's Internet traffic passes through the Commonwealth of Virginia, so it is appropriate that we give our prosecutors tools to go after this costly and annoying crime," Warner said in a statement. "Before this law, legal action was almost not worth the trouble for prosecutors--which is no message to send to our Internet industry in its fight against the spam invasion."

Other states have enacted laws making e-mail abuse a civil crime. Similar bills have been considered on the national level during the past few years, but no federal action has yet been taken.

So far, Warner said, the civil penalties haven't prevented spam from being sent, and that warrants a tougher approach to the problem.

Egregious Offenders

The law targets only the most egregious offenders and can't be applied to an innocent party who happens to send out a large mailing, according to Warner.

Under the law, senders can be prosecuted if they consciously alter an e-mail header or other routing information and attempt to send either 10,000 messages within a 24-hour period or 100,000 in a 30-day period. The sender can also be prosecuted if a specific transmission generates more than $1000 in revenue, or if total transmissions generate $50,000.

The underlying Virginia statute in which the new felony penalties appear has survived previous constitutional challenges in cases brought by both Dulles, Virginia-based America Online and New York-based Verizon Communications, according to the governor's office. Because it focuses on e-mail that passes through Virginia-based Internet service providers, the statue gives state prosecutors and the Virginia attorney general legal jurisdiction over spammers outside the state, said the governor's office.

Marvin Benn, an intellectual property attorney at Much Shelist Freed Denenberg Ament & Rubenstein P.C. in Chicago, said the new Virginia bill strengthens the state's existing antispam provisions; but in doing so, it may have attempted to do too much. Making high-volume spamming a criminal act "presents some real constitutional issues," Benn said.

"I don't really think they can do it," he said of the felony provisions. "It seems to be a violation of the First Amendment."

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