Spammers, today is your day. If you thrive on sending unsolicited bulk e-mail by using false transmission information, then you no longer have to live in fear of certain legal consequences. On March 30, 2009, the U.S. Supreme Court denied cert. to consider reinstating Virginia’s anti-spam law. Last September, the Virginia Supreme Court held that Virginia’s anti-spam law, which was designed to impose consequences on people who send massive amounts of unwanted e-mail, was unconstitutional and that court’s ruling now stands.

The 2003 anti-spam law was one of the first of its kind and had been intended to protect citizens from receiving frightening amounts of junk e-mail. According to Internet service providers, an astonishing 90 percent of e-mail is spam.

Although the unconstitutionality of this particular anti-spam law may seem like a huge windfall for spammers poised to thrash your inbox with a tidal wave of chain letters and misleading subject lines, federal law already prevents spammers from accomplishing a lot. Additionally, spam filters catch most of the stuff that we would try to avoid anyway.

This current “victory for the First Amendment” may be short-lived as Virginia Attorney General Bill Mims has promised to go back to the drawing board and draft a new anti-spam bill that will “address any potential constitutional concerns.” Even so, it does not appear that a new, constitutional version of the law would accomplish much besides winning some political points for Mr. Mims. Because the federal CAN-SPAM Act is intended to preempt state anti-spam laws, the only real way to draft a state law with teeth would be to focus on fraudulent or deceptive acts and computer crimes–issues that states are still permitted to address without facing federal preemption.

Unfortunately for you, spammers, even after this “victory” you still may be subject to a fine of up to $11,000.

Sara Beth Myers

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