Spam’s Still Legal, Virginia

I make mistakes. Last week I confused Go2Net and GoTo.Com in a story here about Disney’s Go Network. Fortunately a reader helped my editor catch the mistake. But at least I didn’t blow the lead.

Last week, another well-known news agency blew the lead on their story about Virginia’s new anti-spam law. So today let me correct them, and set things straight.

The new law will not put you in jail for sending prospects an unsolicited commercial e-mail. Your freedom is only at risk if you forge headers, that is, if you change your return address in order to turn the recipients’ anger on someone else. You may also be in trouble if you sell software that forges headers.

Now you can be sued under the new law if your spam deliberately crashes someone else’s server or network, notes John Mozena, spokesman for the Coalition Against Unsolicited Commercial Email, a leading proponent of anti-spamming legislation. But that’s a civil action, not a criminal violation. “This law does not address the problem of non-forged junk e-mail,” he says.

Wire services may have been confused by a statement from Kent Willis, the Virginia ACLU’s executive director, promising to fight the law as an infringement on free speech. But Mozena told me the state was careful not to act against speech, only against damage to servers.

“This amends the existing Virginia computer trespass statutes,” he said. “It’s a property rights bill. In a situation like this property rights trump free speech rights. So it’s easy to defuse the ACLU free speech argument.”

What’s the bottom line? If you’re using your real return address, you can still use direct e-mail as a selling tool, even unsolicited e-mail. I personally don’t think it works, because the risk of angering prospects exceeds the chance they’ll buy your offer, which costs goodwill. But if you’re honest about it, you can still spam. Even in Virginia.

What do you think? Let’s talk about it.

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