|
Hellfire
and Spamnation
Virginia
legislation making fraudulent,
unsolicited,
bulk e-mail a felony represents a triumph of the
practical, problem-solving New Politics of the New
Economy.
It
seemed like one of those sessions known in General
Assembly parlance as the Night of the Long Knives,
a time when bills were ruthlessly dispatched by
the House Courts of Justice Committee. The
deadline for deliberations was fast approaching,
and the Criminal Justice Subcommittee had been
meeting for hours. When the pizza was delivered,
it was clear to delegates, lobbyists and the
public alike that the hearing on scores of bills
still to be considered would go well into the
night.
“Hey!” interjected subcommittee chairman Del. Dave Albo,
R-Springfield, in an attempt to rally committee
members back around the bills at hand. “This
bill is about the same fraudulent activity, the
same theft of services and money we just sought to
shut down for the cigarette industry. Illegal spam
is drowning Internet companies and consumers in Virginia.
Spam threatens jobs in Virginia.”
Albo’s introduction to his colleagues set the stage for
further consideration of legislation to make
illegal unsolicited bulk e-mail a felony. For
every delegate who had helped Virginia
pass the nation’s first anti-spam legislation in
1999, there was a new delegate who had not been in
the House then. But for every delegate who had cut
his or her political teeth before the Internet
age, there was one who never had been without the
Internet as an educational or business tool.
Therein lies the essence of the New Politics that promises
to boost Virginia’s government further and faster than traditional
observers expect. In what might be termed Old
Politics, money and power flow to titles and the
most accomplished manipulators. Process and
partisanship triumph over substance. Driven by the
New Economy (which is the Knowledge Economy, not
the Dot-com Economy), however, something new has
emerged. Particularly where technology issues are
concerned, a New Politics has taken hold in which
the power to define questions and find answers
shifts power to thinkers and problem-solvers.
Office, title and position no longer are
substitutes for knowledge, innovation, creativity,
understanding and speed in responding to change
and challenge. Pragmatism and results rule.
Exhibit A is Virginia’s
1999 success in becoming the first state to fight
illegal unsolicited bulk e-mail and hacking. The
law made illegal the falsification of e-mail
headers to disguise the identity of the sender
(fraud) and the use of equipment and software
designed specifically to harvest email addresses.
The law also strengthened the ability of Internet
service providers (ISPs) to enforce contract
provisions that restrict unsolicited e-mail
addressed to their subscribers and that govern
subscriber e-mail to others. It authorized private
parties to sue offenders and collect civil fines.
And the law redefined hacking as computer
trespass, a common law tenet dating back
centuries.
But a phenomena that didn’t exist 10 years ago and was a
mere nuisance five years ago had exploded by 2003
into a problem that costs ISPs, businesses and
consumers billions of dollars a year. Further, the
seamy side of human Internet use -- child
pornography, obscene materials and consumer
rip-offs -- spread primarily through illegal spam.
To understand the cost and criminality of
hacker-spammers sending billions of spam messages
every day, envision criminals forging postage
stamps, then using them to mail billions of pieces
of mail violating U.S. Postal Service rules.
ISPs learned to use the Virginia
statute and similar ones passed subsequently in
two dozen other states to win significant damages.
Courts affirmed the validity of provisions against
computer fraud, computer trespass and theft of
computer services. AOL Time Warner, Verizon Online
and others have won multimillion damage awards in
recent months. But the Monty Python's Viking
chorus of “Spam, Spam, Spam, Spam” just got
louder, even with sophisticated new filtering and
blocking tools available. Experts estimate
spam-related costs approach $10 billion annually.
A New York
Times Magazine article called spam “the
organized crime of the Internet.”
Building on the work of the ISPs in bringing successful
civil actions and the determination of Virginia
leaders – from Gov. Mark R. Warner and Attorney
General Jerry Kilgore to Senate Courts of Justice
Committee Chairman Kenneth W. Stolle, R-Virginia
Beach, and Del. Jeannemarie Devolites, R-Vienna
– the General Assembly moved two bills through
the Albo subcommittee, then the House and the
Senate.
Virginia’s
new law expands liability where one party causes
another to spam, where actual notice of an
anti-spam policy is ignored or where constructive
notice is available via the World Wide Web.
The bill raises penalties for computer fraud based on the
volume of e-mail and revenue generated by
hacker/spammers, for computer trespass, given the
costs of securing a network, and for theft of
computer services based on the value of services
ripped off. It provides a separate and distinct
felony punishment for obscenity violations using a
computer and adds a seizure and forfeiture
provision for proceeds and equipment used in
violating the Virginia Computer Crimes Act.
“We can CAN Spam!” read the banners at AOL’s Dulles
headquarters April 29 as a counter at 2:00 p.m.
ticked off the 636,873,524 illegal spam emails
blocked by AOL since midnight.
“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,” said Gov. Warner before signing the
bills, which take effect July 1.
“We’re not going to be able to stop all of it,”
Attorney General Kilgore concluded, “but some of
the worst offenders will go to jail.”
“Constituents break into applause when I tell them about
what we did in these bills to fight illegal
spam,” concludes Delegate Albo.
“This is the greatest example of the public and private
sectors working together,” added Ted Leonsis,
AOL Vice Chairman, “and if this group can work
together on other problems facing Virginia,
this will remain a great place to work.”
All the characteristics of the New Politics are there for
Virginia.
Problem definition with strong input from
companies and consumers. Innovative thinking and
bill language rooted in actual court rulings and
prosecutor experience. Pragmatic consideration in
committees. Bipartisan cooperation in House and
Senate. The governor and the General Assembly
working on the same page.
Is it too early in an election year to ask for more,
please?
--
May
5, 2003
|
