- The Washington Times - Friday, January 27, 2006


Those annoying e-mails offering home financing deals or other offers can violate Maryland law, even if they’re sent from out of state, a state appeals court has ruled.

Court of Special Appeals Judge Sally D. Adkins sided with a law student who argued that he could sue a New York e-mail marketer who sent him advertising messages. The decision, issued Thursday, overturns a lower court ruling that Maryland’s 2002 Commercial Electronic Mail Act was unconstitutional because it sought to regulate commerce outside state borders.

Judge Adkins, in a 60-page decision, blasted the spammer’s claims that he should not be punished for violating Maryland law because he had no way of knowing whether his e-mails would be opened in Maryland.

“This allegation has little more validity than one who contends he is not guilty of homicide when he shoots a rifle into a crowd of people without picking a specific target, and someone dies,” the judge wrote.

The case started in 2003 when Eric Menhart, then a law student, set up a company to go after illegal spammers. His company, MaryCLE (pronounced “miracle”), got more than 80 e-mails over a span of two months from Long Island, N.Y., marketer Joseph M. Frevola, who sent e-mails including one whose sender was listed as “Exceptional Deals.”

Mr. Menhart hit the “reply” button on some of the e-mails, but his responses were returned as undeliverable. Mr. Menhart did not click on any “unsubscribe” links in the messages. At the end of 2003, Mr. Menhart sent a message to Mr. Frevola’s e-mail company — First Choice Internet Inc. — saying Mr. Frevola had violated Maryland’s anti-spam law and should pay damages or be sued.

“My client felt like he was being blackmailed,” said Baltimore lawyer Andrew Dansicker, who represented Mr. Frevola.

He said Judge Adkins’ ruling could open a door for people to make a living by extracting damages from e-mail marketers.

“There’s going to be a cottage industry in Maryland of little companies and individuals who will use this law to extract money from out-of-state companies,” Mr. Dansicker said.

Mr. Menhart’s attorney, Michael Rothman, called Maryland’s anti-spam law an essential tool to keep e-mail functioning. Maryland was one of the first states to try to control junk e-mail through legislation, and its 2002 law predates the 2004 federal CAN-SPAM Act.

“Part of our goal was to take back the medium of e-mail from spammers who have really hijacked it,” Mr. Rothman said.

The next step in the case is not clear. Mr. Dansicker said the marketer would like to appeal to the state’s highest court, but Mr. Frevola’s company has since gone out of business and may not be able to afford to continue pushing the case forward.

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