Maryland spam law suffers setback

ROCKVILLE, Md. — A ruling by a state judge that Maryland's anti-spam law is unconstitutional because it seeks to regulate commerce outside the state should not affect future cases, the state's attorney general said Tuesday.

The ruling last week threw out a lawsuit against a New York e-mail marketer by a George Washington University law student who had set up a Maryland corporation to fight unsolicited e-mail advertisements, known as spam.

Attorney General J. Joseph Curran said in the case in question the sender was in New York, the receiver was in Washington and the Internet service provider was in Virginia.

Whether the Maryland law applies in that case "is a real question," Curran said.

"The facts in this case may well be beyond the scope of our law, but that doesn't mean our law is unconstitutional," Curran said.

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 who send e-mail to people who live in Maryland but might receive it elsewhere.

Eric Menhart, the George Washington University law student who brought the case in Maryland against Joseph Frevola, promised to appeal. Andrew Dansicker, the lawyer representing Frevola, the New York e-mail marketer, said all of Menhart's cases are based on the Maryland statute and will be dismissed.

Menhart set up the corporation in Maryland but lives in Washington. The judge concluded that the law unconstitutionally attempts to regulate commerce that may never enter Maryland.

Congress and more than three dozen state legislatures have passed laws to corral spam, the popular term for junk e-mail advertising. An appeals court in California and the Washington state Supreme Court have upheld state laws that had been declared unconstitutional by lower courts on grounds similar to the Dec. 9 ruling in Maryland.

Curran said Maryland's law is modeled after the Washington state law and he expects it will be upheld if challenged.

Maryland's law allows residents who receive e-mail with certain false information to sue for damages. A separate criminal statute enacted in October adds criminal penalties of up to $25,000 and 10 years in prison.

The federal anti-spam law that took effect this year does not allow individuals to sue spammers. That law superseded most state laws unless — like Maryland — they specifically addressed deceptive or fraudulent e-mail.