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Judge Faults Md. Anti-Spam Statute

U.S. Commerce Clause Cited

By David Snyder
Washington Post Staff Writer
Wednesday, December 15, 2004; Page E05

A Montgomery County judge has ruled that Maryland's anti-spam law is unconstitutional because it seeks to regulate business transactions beyond the state's borders.

Circuit Judge Durke G. Thompson's ruling, made as part of a Dec. 9 opinion dismissing a lawsuit against a New York e-mail marketing company, is not binding on other courts. If it were upheld on appeal, however, it could have the effect of overturning the state's 2002 Commercial Electronic Mail Act, which outlawed commercial e-mail sent without permission or containing false or misleading information.

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In the lawsuit, Eric Menhart, a law student in the District, alleged that First Choice Internet of New York violated Maryland law by repeatedly sending commercial e-mail to Menhart's company, MaryCLE, an abbreviation for Maryland Consumer Legal Equity. Menhart said the company, incorporated in Maryland, was formed to fight aggressive marketers.

In dismissing the complaint, Thompson said the Maryland anti-spam law violates the Commerce Clause of the U.S. Constitution, which reserves the power to regulate interstate commerce for the federal government.

Menhart said in an interview yesterday that he plans to appeal the decision.

"We obviously are disappointed with the ruling," he said.

Maryland Attorney General J. Joseph Curran Jr. (D) said he "respectfully disagrees" with the ruling, and said it will have no effect on statewide enforcement of the law.

"The law is still in force throughout the entire state of Maryland," Curran said in an interview. "This decision only affects that one case. The law remains, in our opinion, constitutional throughout the entire state."

The Commercial Electronic Mail Act, passed by the General Assembly in 2002, allows state residents to seek civil damages from spammers. The General Assembly this year passed a law creating criminal penalties for spammers.

Congress and many other states have passed similar laws to curtail spam. Courts in Virginia, New York and Vermont have struck down anti-spamming laws. Courts in Washington and California have upheld those states' anti-spam laws.

Andrew Dansicker, a lawyer for First Choice Internet, said anti-spam laws are "vulnerable" to challenge because it is hard to prove that spammers intend to send e-mail to the places where the e-mail ends up.

"The Internet is not like making a phone call or sending a piece of mail, when you know where the phone call or the piece of mail are going to be delivered," he said. "How is the state going to determine that [an e-mail] was actually being sent to Maryland when the person sending the e-mail doesn't even know where it's going?"

New laws and technology are making spamming more difficult, and more litigation is likely, said Chris Hoofnagle, associate director of the Electronic Privacy Information Center.

Internet service providers "are getting better at filtering, users are more sophisticated, but to get that last bit of obnoxious spammers who are responsible for billions of messages, one has to resort to legal resources," he said.


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