Judge Strikes Maryland Spam Law

A state judge in Maryland recently invalidated the state's anti-spam law on the grounds that it unreasonably burdened interstate commerce. In a decision issued earlier this month, Judge Durke G. Thompson dismissed a civil lawsuit brought by anti-spam activist Eric Menhart, against the New York-based company First Choice Internet.

Thompson ruled that the law is invalid because it too heavily regulates conduct that occurs in other states. "Defendants had no contact with the state of Maryland because their e-mails were sent from New York, routed through Virginia and Colorado, and finally were received in Washington, D.C.," wrote Thompson in his decision dismissing the case before trial.

He added that even if a recipient opened the e-mail in Maryland, that fact alone wasn't enough to make First Choice and its president, Joseph Frevola, face a lawsuit in the state. Additionally, Thompson ruled that the portion of the law banning e-mails that contain a "false or misleading subject line" is too vague to be enforced.

Menhart, a 25-year-old third-year law student at George Washington Law School, said he plans to ask Thompson to reconsider the case, and if that is unsuccessful, will appeal to a higher court.

The ruling is believed to be the first of its kind in Maryland, but appellate courts in both Washington and California have gone the other way, holding that those states' anti-spam laws do not unduly restrict commerce between states.

In the case, Menhart argued that First Choice violated Maryland's anti-spam law by sending MaryCLE-- a consumer protection firm Menhart founded--around two unsolicited e-mails a day between Sept. 18 and Oct. 29 of 2003. Some of the e-mails also contained allegedly misleading subject lines, said Menhart. He attempted to contact the sender about 80 times by e-mail, and also sent letters by U.S. postal mail to Frevola, but never clicked on the unsubscribe link in the e-mails to opt-out of receiving them.

Andrew Dansicker, who represented First Choice, said the e-mails complied with the federal Can Spam law because they had a valid opt-out link. Dansicker, a partner in Baltimore's Schulman Treem, also denied that the subject lines contained fraudulent statements.

Patchwork of Laws

Whether the approximately three dozen states with anti-spam laws can enforce them is of great interest to e-mail marketers because many send messages throughout the country. Marketers generally maintain that it's unrealistic to expect them to comply with so many different state laws, on top of the federal Can Spam act.

Marketers also say that, with laptops and portable devices, it's impossible to know where e-mails will ultimately be opened. First Choice made similar arguments to Thompson, writing in court papers: "Plaintiffs' argument that defendants should have determined which emails were being sent to Maryland residents located in Maryland is absurd and would create such an overwhelming burden on any company as to prevent them from sending out any emails."

For those reasons, some industry experts say that e-mail cries out for uniform laws. "The Internet, almost by definition, is a multi-jurisdictional, if not jurisdictionless, medium," said Trevor Hughes, executive director of the Email Service Provider Coalition. "You would hope regulation migrates to the highest level of jurisdiction possible."

But some consumer advocates say that individual state laws against fraud are still necessary. While Can Spam itself supersedes many provisions of state laws, it does not preempt state laws regulating fraud. "Can Spam is a floor, not a ceiling," said Chris Hoofnagle, associate director of the Electronic Privacy Information Center. "They got this one wrong," said Hoofnagle of the Maryland court's decision. Hoofnagle was retained in the case as an expert witness against First Choice.

As of now, the hodgepodge of court decisions across the country has some observers saying that marketers won't know for sure whether they must follow a patchwork of state laws unless the U.S. Supreme Court gets involved. "This is an issue that could be decided differently in different states, but ultimately would have to be decided by the Supreme Court," said Jerry Spiegel, a partner at the New York law firm Frankfurt Kurnit Klein & Selz.

Next story loading loading..