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A state judge has ruled that Maryland’s anti-spam law — the first state law to penalize senders of junk e-mail — is unconstitutional because it seeks to regulate commerce outside the state’s borders. Last week’s ruling, which threw out a lawsuit against a New York e-mail marketer, effectively overturns Maryland’s 2002 Commercial Electronic Mail Act. Eric Menhart, the George Washington University law student who brought the case in Maryland against Joseph Frevola, promised to appeal. 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. 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. Assistant Attorney General Steve Sakamoto-Wengel said he believes the law should stand. “The law over the Internet is developing. There are going to be conflicting rulings,” he said. But the ultimate hope is that “they all get resolved and we have clear rules over what states can and can’t regulate.” 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 That law superseded most state laws unless — like Maryland — they specifically addressed deceptive or fraudulent e-mail. 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 who might receive the transmission elsewhere via laptop. Menhart set up a corporation in Maryland to fight spam and pays Maryland taxes, but he lives in Washington. The judge concluded that the law unconstitutionally attempts to regulate commerce that may never enter Maryland. The case’s dismissal could mean “Eric Menhart’s out of business,” said Andrew Dansicker, the lawyer representing Frevola, the New York e-mail marketer. “All of his cases are based on the Maryland statute. All of his cases are going to be dismissed.” Copyright 2004 Associated Press. All Rights Reserved. This material may not be published, rewritten, or redistributed.

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