Antispam law ruled unconstitutional

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.

[Jonathan]

Great. We know who to blame

When servers crash because of the amount of spam. When bandwidth gets eaten up world wide because of spam. When billions go down the drain fighting the never-ending onslaught. We know whom to blame. This one's for you Durke you dumb SOB. I love these judges who are so out of touch with technology and the consequences of their dumb*** actions that they are more dangerous then useful. Every judge in America should be forced to take a remedial IT class that goes through the process of how things work in the tech world. Dumb ignorant moron.

[hadaso]

Anti-spam laws go in the wrong direction

Anti-spam laws go in the wrong direction: they try to make it illegal to send a single spam message, while surely a single message cannot be spam, by definition (it is not BULK mail).

Of course a spammer cannot know if a single spam message sent would be received in Maryland. But the spammer can be sure that out of a spam run of a million spam messages a certain percentage would land in mailboxes of residents of Maryland, and this number can be quite accurately estimated by available statistical data (by "accurately estimated" I mean that it can be predicted that the probability that this number is higher than say, 10000 can be computed, so that it is possible to prove that there is a high level of confidence that more than a given number of spam messages, e.g. 10000, would be received in Maryland.. by "high level of confidence" I mean a higher level than the level of confidence irequired by courts to accept evidence used to sentence a person to death).

So what lawmakers should aim at is this "bulk" nature of spam (and some other things, e.g. viruses). The damage caused by a spam run can be estimated, and laws should be made to make spammers pay for that. But this will never work if the law says one cannot send a single unsolicited message. The court was right! The lawmakers were wrong! And they should go back and think harder and make a reasonable law, that deals with the real nature of spam, and not around it!

If a zero is not exactly zero, then a milion zeros can be quite a lot, and the law should learn to deal with this reality. What the court said here was that the law cannot forbid a sender to send a single email whose destination is unknown. The law should have been worded in a way that make this legal, but would make it illegal to send a spam run that can be reasonably expected to contain more than a hundred recipient in maryland. And if Maryland cannot make such a law, then someone else should. And if not forbid the sending, then just pay for the damage. Whatever...

Article is legally off-base

As a student who recently published an article on Spam and the constitutionality of such statements, I can say that the article is completely off-base.

First, state courts have little "clout" when they rule on problems of federal constitutional law--especially TRIAL COURTS in Maryland.

The article as misinterpreted Washington and California decisions in State v. Heckel and Ferguson v. Friendfinders. Both of those decisions held that the state spam statutes did NOT create problems of the dormant commerce clause because the state statute had a qualifying clause which grounded each message to a computer in the state. Such arguments that state spam laws violate the dormant commerce clause should try taking an actual Constitutional Law class instead of playing with ideas of burdening interstate commerce.

I would really like to talk to the author of this article because I disagree fundamentally with assumptions that he or she has made and also think that the facts of the article are wrong. Sure a state trial judge in Maryland has perceived that the law may violate consitutional issues (although how he does this in light of the substantial body on dormant commerce clause jurisprudence is beyond me). And the bigger fish to fry are those interest-catering Congressmen who let the CAN-Spam Act pass last year which preempted all state civil statutes and which left nothing in its place. If you need someone to attack, try your local Congressman.