eView: Virginia Spam Decision Will Not Affect Legitimate E-mail Marketers

Last month, the Virginia Supreme Court struck down that state's anti-spam law on the grounds that the statute violated the First Amendment right to anonymous speech.

In wiping the 2003 law off the books, the court also threw out the criminal conviction of Jeremy Jaynes, one of the Internet's most prolific spammers.

Jaynes was convicted in 2004 of flooding America Online's servers, most of which are located in Virginia, with tens of thousands of unsolicited e-mails advertising various products, including pornography. After his conviction, and subsequent sentencing to nine years in prison, Jaynes took his appeal to the state's highest court.

In a unanimous decision, Justice G. Steven Agee wrote that, "the right to engage in anonymous speech, particularly anonymous political or religious speech, is 'an aspect of the freedom of speech protected by the First Amendment,'" citing a 1995 U.S. Supreme Court case.

"By prohibiting false routing information in the dissemination of e-mails," the court held, Virginia's anti-spam law, "infringes on that protected right."

The problem with the Virginia law boiled down to the fact that lawmakers were overly broad in drafting the statute, writing it in such a way that the prohibitions covered not just commercial e-mail, but also e-mail with political or religious content as well.

Under well-established constitutional tests, restrictions on noncommercial speech are judged under a far stricter level of scrutiny than purely commercial speech.

For legitimate e-mail marketers, the Virginia decision will have no effect, since few legitimate companies engage in the kinds of practices that earned Jaynes the threat of nearly a decade in jail. In addition, even though the Virginia law has been stricken from the books, the court's ruling has no effect on the continued enforcement of the federal CAN-SPAM Act, which also prohibits fraudulent and deceptive practices in the sending of commercial e-mail.

Lesson for e-marketers
There is, however, an important reminder for marketers from the Virginia exercise: The laws affecting e-mail marketing practices, whether at the state level, federal level or even at the international level, are complicated and require vigilance in remaining compliant.

Fortunately, a number of key industry organizations track developments in e-mail laws globally, and as a result, most of the prevailing 'best practices' guidelines issued by groups like the Email Sender and Provider Coalition and the Messaging Anti-Abuse Working Group meet or exceed the minimums for legal compliance at a broad level.

In the meantime, Virginia's Attorney General Bob McDonnell has indicated that he intends to appeal the case to the U.S. Supreme Court, guaranteeing that the wrangling over Virginia's law will continue for many years to come.

Ray Everett Church is the director of privacy and industry relations at Responsys, a San Bruno, Calif.-based e-mail services provider. Reach Ray at reverett@responsys.com.

• MORE ON
• EMAIL MARKETING