- The Washington Times - Tuesday, December 14, 2004

A Montgomery County judge has ruled that Maryland’s anti-spam law — the nation’s first to penalize senders of junk e-mail — is unconstitutional because it attempts to regulate commerce outside the state’s borders.

Circuit Court Judge Durke G. Thompson issued the written opinion last Thursday. The ruling throws out a lawsuit against New York e-mail marketer Joseph Frevola and essentially overturns Maryland’s 2002 Commercial Electronic Mail Act.

Eric Menhart, a George Washington University law student who brought the case against Mr. Frevola, has vowed to appeal.

The Baltimore Sun reported Judge Thompson’s decision yesterday.

Business and individuals struggle to manage spam, the common term for junk e-mail advertising. The messages — considered a nuisance by most computer users — often promote low-cost mortgages, designer watches and products designed to cure male impotency.

Congress and more than 35 states have passed laws to combat spam. Courts in California and Washington have declared their state laws unconstitutional on grounds similar to Judge Thompson’s decision, but appeals courts in those states have upheld the laws.

The Maryland law allows residents who receive e-mail that contains false claims to sue for damages. Under a separate criminal statute enacted in October, spammers face as many as $25,000 in penalties and 10 years in prison.

The law should stand, Assistant Attorney General Steve Sakamoto-Wengel told the Associated Press.

“The law over the Internet is developing. There are going to be conflicting rulings,” he said. But the ultimate hope is that “they all get resolved and we have clear rules over what states can and can’t regulate.”

Judge Thompson’s decision is unlikely to affect what happens in other states, said Douglas M. Isenberg, an Atlanta lawyer who specializes in technology, the Internet and intellectual property.

Also, the decision does not necessarily represent a major victory for spammers, he said.

“The fact that a single state law has been struck down does not necessarily mean the floodgates are going to open for spammers,” Mr. Isenberg said.

The federal anti-spam law that took effect in January does not allow individuals to sue spammers. It supersedes most state laws unless — like Maryland — the state addresses deceptive or fraudulent e-mail in specific terms.

The Maryland law applies to e-mail sent to or from Maryland residents, but it leaves vague the actual location of the resident — potentially affecting companies that send e-mail to people who live in Maryland, but who might receive the transmission elsewhere via laptop.

Mr. Menhart, 25, lives in the District, but he set up a corporation in Maryland called MaryCLE to fight spam and pay Maryland taxes. His domain name is “maryland-state-resident.com.”

Mr. Menhart charged that Mr. Frevola sent MaryCLE more than 80 fraudulent e-mails and the case sought more $168,750 in damages, according to the Sun.

Judge Thompson ruled that the law unconstitutionally attempts to regulate commerce that may never enter Maryland.

The case’s dismissal could mean “Eric Menhart’s out of business,” said Mr. Frevola’s attorney, Andrew Dansicker. “All of his cases are based on the Maryland statute. All of his cases are going to be dismissed.”

The decision to dismiss the lawsuit represents Judge Thompson’s latest high-profile ruling.

In 2001, he ruled the village of Friendship Heights did not have the authority to pass a smoking ban that was considered the nation’s strictest at the time.

In recent years, police and prosecutors criticized the judge for allowing an admitted child molester to return home to live with the stepdaughter he abused, and the judge was verbally attacked by women’s groups for telling the parents of an 11-year-old girl that “it takes two to tango” when sentencing the child’s sexual abuser.

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