Virginia Law

Article 5.1. Offenses Involving Electronic Communication Devices.

As used in this article, unless the context requires a different meaning:

"Electronic communication device" means (i) any type of instrument, device, machine, equipment or software that is capable of transmitting, acquiring, encrypting, decrypting or receiving any signs, signals, writings, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems or (ii) any part, accessory or component of such an instrument, device, machine, equipment or software, including, but not limited to, any computer circuit, computer chip, security module, smart card, electronic mechanism, or other component, accessory or part, that is capable of facilitating the transmission, acquisition, encryption, decryption or reception of signs, signals, writings, images, and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems.

"Electronic communication service" means any service provided for a charge or compensation to facilitate the lawful origination, transmission, emission or reception of signs, signals, writings, images and sounds or intelligence of any nature through the use of an electronic communication device as that term is defined in this section.

"Electronic communication service provider" means any person or entity providing any electronic communication service including (i) any person or entity owning or operating any cable television, satellite, Internet-based, telephone, wireless, microwave, fiber optic, data transmission or radio distribution network, system or facility; (ii) any person or entity that for a fee supplies equipment or services to an electronic communication service provider; and (iii) any person or entity providing an electronic communication service directly or indirectly using any of the systems, networks, or facilities described in clause (i).

"Equipment or materials used to manufacture an unlawful electronic communication device" means (i) a scanner capable of intercepting the electronic serial number or mobile identification number of a cellular or other wireless telephone; (ii) electronic software or hardware capable of altering or changing the factory-installed electronic serial number of a cellular or other wireless telephone or a computer containing such software; (iii) a list of cellular or other wireless telephone electronic serial numbers with their associated mobile identification numbers; or (iv) a part, accessory or component of an unlawful electronic communications device possessed or used in the manufacture of such device including any electronic serial number, computer software, mobile identification number, service access card, account number, or personal identification number used to acquire, receive, use, decrypt or transmit an electronic communication service without the actual consent or knowledge of the electronic communication service provider.

"Manufacture of an unlawful electronic communication device" means to make, produce or assemble an unlawful electronic communication device, or to modify, alter, program or reprogram an electronic communication device to be capable of performing any of the illegal functions of an unlawful electronic communication device as that term is defined in this section.

"Sell" means to sell, exchange, lease, give or dispose of to another or to offer or agree to do the same.

"Unlawful electronic communication device" means any electronic communication device that has been manufactured, designed, developed, altered, modified, programmed or reprogrammed, alone or in conjunction with another electronic communication device, so as to be capable of facilitating the disruption, acquisition, receipt, transmission, retransmission or decryption of an electronic communication service without the actual consent or knowledge of the electronic communication service provider. Such unlawful devices include, but are not limited to (i) any device, technology, product, service, equipment, computer software, or any component or part thereof, primarily distributed, sold, designed, assembled, developed, manufactured, modified, programmed, reprogrammed or used for the purpose of facilitating the unauthorized receipt of, transmission of, disruption of, decryption of, access to, or acquisition of any electronic communication service provided by any electronic communication service provider; and (ii) any type of instrument, device, machine, equipment, technology, or software that is primarily designed, assembled, manufactured, developed, sold, distributed, possessed, used or offered, promoted or advertised for the purpose of defeating or circumventing any technology, device or software, or any component or part thereof, used by the provider, owner or licensee of any electronic communication service or of any data, audio or video programs or transmissions, to protect any such electronic communication, data, audio or video services, programs or transmissions from unauthorized receipt, acquisition, access, decryption, disclosure, communication, transmission or retransmission.

1993, c. 439; 1998, c. 518; 2002, c. 671; 2003, c. 354.

A person who knowingly possesses (i) an unlawful electronic communication device or (ii) equipment or materials used to manufacture an unlawful electronic communication device as defined in § 18.2-190.1 with the intent to manufacture an unlawful electronic communication device shall be guilty of a Class 6 felony unless such possession is by an electronic communication equipment manufacturer while lawfully acting in that capacity, or a facilities-based electronic communication service provider licensed by the Federal Communications Commission or by a law-enforcement agency.

1993, c. 439; 1998, c. 518; 2002, c. 671; 2003, c. 354.

A person who (i) knowingly sells an unlawful electronic communication device or (ii) sells material, including hardware, data, computer software or other information or equipment, knowing, or having reason to know, that the purchaser or a third person intends to use such material in the manufacture of an unlawful electronic communication device, shall be guilty of a Class 6 felony.

1993, c. 439; 1998, c. 518; 2002, c. 671; 2003, c. 354.

A person who knowingly manufactures an unlawful electronic communication device shall be guilty of a Class 6 felony.

1993, c. 439; 1998, c. 518; 2002, c. 671; 2003, c. 354.

For purposes of imposing criminal penalties for violations of §§ 18.2-190.3 and 18.2-190.4, the commission of the prohibited activity regarding each unlawful electronic communication device shall be deemed a separate offense.

2002, c. 671; 2003, c. 354.

The court may, in addition to any other sentence authorized by law, require a person convicted of violating § 18.2-190.3 or § 18.2-190.4 to make restitution in the manner provided in § 19.2-305.1.

2002, c. 671.

Repealed by Acts 2004, c. 995.

Any electronic communication service provider aggrieved by a violation of this article may seek both injunctive and equitable relief and an award of damages including attorney's fees and costs. In addition to any other remedy provided by law, the party aggrieved may recover an award of actual damages or $500, whichever is greater, for each unlawful electronic communications device involved in the action. In any case in which the court finds that the violation was committed for purposes of commercial advantage or financial gain, the award shall be increased by an amount not to exceed three times the actual damages sustained or $1,500 for each unlawful electronic communications device involved, whichever is greater.

2002, c. 671; 2003, c. 354.