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Antispam law ruled unconstitutional

Judge says Maryland law unduly interferes with interstate commerce. Attorney for alleged spammer says view could spread to other states.

A Maryland judge has tossed out a lawsuit against an alleged spammer, saying a state law restricting unsolicited e-mail is unconstitutional because it unfairly restricts interstate commerce.

Durke Thompson, a trial judge in Montgomery County, ruled that the Maryland law unduly discriminates against out-of-state commerce, a restriction that's generally prohibited by the U.S. Constitution.

Thompson dismissed a lawsuit that a Maryland business had brought against a New York firm, First Choice Internet, saying in a ruling on Thursday that the company and its president "did not intentionally direct their e-mails" to Maryland residents.

"There's no way for a person sending e-mail to know where the e-mail is going," said Andrew Dansicker, a Baltimore lawyer representing First Choice Internet. "Until there is, it's not fair to be passing statutes that penalize people for sending an e-mail."

First Choice Internet was sued by a George Washington University law student, Eric Menhart, who formed a Maryland company to file lawsuits against what he believes to be offensive marketing practices. But the judge ruled that Menhart spent most of his time in Washington, D.C., not Maryland, and it would be unfair to require a sender of e-mail to guess where the correspondence would be read.

Dansicker predicts that the "reasoning of the court could apply to other states, especially if it's upheld by the appeals court."

Judges in California and Washington state have ruled that their respective state's antispam laws are unconstitutional for the same reason: They arguably violate the U.S. Constitution's commerce clause, which prohibits states from levying undue burdens on interstate commerce. But in each of those cases, appeals courts eventually upheld the state laws.

In his ruling last week, Thompson said this case was more akin to a string of Internet-related lawsuits in New York, Virginia and Vermont that struck down state laws because they ran afoul of the commerce clause. In the Vermont case, a court struck down a law targeting sexually explicit materials because it found the state has "projected its legislation into other states and directly regulated commerce therein."

In general, the federal Can-Spam Act pre-empts state laws. But it has an exception for laws dealing with fraudulent and deceptive spam, which is what the Maryland law targets.