- The Washington Times - Tuesday, April 20, 2004

An antispam measure on the verge of becoming law in Maryland would be difficult to enforce, legal analysts said, because major Internet providers are not based in the state.

Technology lawyers said prosecutors would have trouble bringing cases against suspects without proving that spam was sent through computer servers in Maryland, where no major e-mail provider has its headquarters.

Virginia’s antispam law, which was a model for the Maryland bill, has resulted in three indictments against suspects accused of sending spam through servers owned by Sterling, Va.-based America Online, the world’s largest Internet provider.

If passed by Gov. Robert L. Ehrlich Jr., a Republican, Maryland’s antispam law arguably would be the strictest in the nation, making it a crime to send fraudulent, unsolicited commercial e-mail, known as spam, in the state. Violators face up to 10 years in jail and $25,000 in fines. Under the law, it would be illegal to send more than 10 fraudulent spam messages per day, 100 per month or 1,000 per year.

Legal analysts said AOL and other Internet providers could help Maryland officials build cases against spammers by forwarding complaints from customers living in the state. But they said companies will not be able to argue that the spammers violated the law by sending e-mails over their networks, and that could result in less evidence overall.

“If there’s a quantity hurdle that needs to be passed, it’s going to be pretty tough to meet that,” said David Kramer, a San Francisco lawyer who has consulted on state spam laws. “AOL is used as a clearinghouse for spam complaints … I’m not sure that kind of clearinghouse exists in Maryland.”

Virginia officials acknowledged AOL’s role in the indictments against three North Carolina residents accused of sending fraudulent spam to AOL customers.

The indictments were announced at AOL’s headquarters in December, five months after Virginia Gov. Mark Warner, a Democrat, signed the law there in July.

“We have a large capability of getting these numbers by working with the [Internet pro-viders],” said Carrie Cantrell, a spokeswoman in the Virginia Attorney General’s office. “Clearly in Virginia, we’re at an advantage.”

AOL spokesman Nicholas Graham said the company was confident that it would be able to help bring charges against spammers by forwarding complaints from Maryland customers.

He acknowledged that the pool of evidence might be smaller than what can be collected in Virginia, but would be enough to build a strong case.

Another question facing Maryland is whether it has the resources to go after spammers.

The state’s fiscal 2005 budget does not call for an increase in staff or money to fight spam, and there is no one in state government assigned to address the spam problem.

“We’re not anticipating any additional resources this session,” said one attorney in Maryland’s Consumer Protection Division. “We’d like to have more.”

Maryland officials said the law probably would have a minimal effect on the amount of spam computer users receive, particularly if the majority of spam comes from outside Maryland, as most analysts think.

But they said it would allow law enforcement to go after spammers operating in the state and provide more protection than Maryland’s previous law.

“Unfortunately, consumers will read about this law and say, “Ah, I’ll call the attorney general and then I won’t get any more spam,’” said Maryland Assistant Attorney General Carolyn Henneman. “I wish that were true.”

Ms. Henneman said Maryland easily could prosecute a case against a spammer operating in Maryland. But she said the law is not clear as to how spammers operating outside the state can be prosecuted.

“It’s a developing area of the law. It’s a new frontier,” she said.

Attorneys for the defendants in Virginia have filed motions to dismiss the case against their clients, partially on the grounds that they had no way of knowing the state in which their e-mail would be routed or received.

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