Why it doesn’t matter that the Virginia anti-spam law was struck down

Posted by J.D. Falk on

If the headlines are to be believed, spam is now entirely legal in Virginia and anyone can send whatever they want without any fear of reprisal, ever. Looking beyond the headlines, it appears that the Virginia Supreme Court’s ruling in AOL’s case against formerly convicted spammer Jeremy Jaynes declares that the Virginia anti-spam law violates the Constitutional protection of anonymous speech, and thus is null and void.

So, are legitimate companies now permitted to send spam? Do the criminals get to run loose in the streets, advertising their wares openly? Are we about to suffer an increase in spam that makes 2007 look like 1977?

Of course not. What the ruling actually means is much simpler than that — and much less scary. Here’s a quick review:

  • If you sent spam in, to, or through Virginia before January 1, 2004, it wasn’t illegal after all — unless another law applied, as it often does.
  • If you sent spam in, to, or through Virginia after January 1, 2004, it’s a federal case under the CAN-SPAM Act rather than staying inside Virginia’s jurisdiction. We’ve discussed CAN-SPAM many times around the water cooler.
  • Jeremy Jaynes will get away with spamming AOL before CAN-SPAM took effect, and may be released from jail. He won’t be invited to in: the Email Reputation Conference.

Legitimate companies, of course — those who worry about their brand, their reputation, and their customers — don’t need to concern themselves with this judgement. We have yet to see any anti-spam law set an appropriately high bar for email marketing practices. Our clients pay attention to these laws so they can be sure they comply, but most of them already have practices that go far above and beyond anything any legislative body has thus far discussed. This ruling doesn’t change that, and it’s very unlikely to change the practices of the vast majority of legitimate commercial email senders — or the filtering decisions of the world’s ISPs and other email receivers. The best marketers will continue to follow industry best practices with regard to permission and relevance. And, in doing so, they’ll continue to see their mail delivered to the people who want to receive it.

Those who don’t follow these practices will end up in the spam folder, or worse: if they are actually spamming (as defined by CAN-SPAM four years ago), then they could go to jail. Those who engage in activities such as computer trespass or identity theft absolutely will go to jail when they are caught, even without this Virginia law — and deservedly so.

Same as it ever was.


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