Tuesday, July 17, 2007

Interesting Defense Issues Under the Maryland Anti-Spam Act - MCEMA - CAN-SPAM's Preemption of State Anti-Spam Statutes

One of my practice areas is the defense of cases brought under the Maryland Anti-Spam Act (“MCEMA”) and the Federal statute known as CAN-SPAM. I have represented companies involved in online marketing that have unwittingly become caught-up in these cases. These cases are very interesting and because they are relatively new, there is a lot of uncertainty as to the status of the law on many issues affecting their outcome.

I am currently before the United States District Court for the District of Maryland arguing that the MCEMA is preempted by CAN-SPAM. CAN-SPAM on its face states that it “supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent any such statute, regulation, or rules prohibits falsity or deception in any portion of a commercial mail message or information attached thereto." CAN-SPAM, 15 U.S.C. § 7707(b)(1).

MCEMA broadly regulates electronic mail that has the “capacity” or “tendency” to deceive. As a result, we are arguing on behalf of our clients that MCEMA regulates e-mail that may not contain any false information and it regulates e-mail that is not actually deceptive.

By regulating e-mail beyond the very limited exemption in the CAN-SPAM, the Maryland legislature crossed the line into preempted territory. If the legislature had simply written the Act to prohibit e-mail that is actually false or deceptive, mirroring the language in the Federal Act’s exemption, it could have remained on its side of the line.

In a 2006 case, Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F.3d 348 (4th Cir. 2006), the United States Court of Appeals for the Fourth Circuit held that the Oklahoma anti-spam act at issue in that case was preempted by CAN-SPAM. Our position is that like the Oklahoma statute, MCEMA should similarly be deemed to be preempted by application of CAN-SPAM.

Other defendants in the case have already raised the preemption argument without success. It remains to be seen, however, how the Court will resolve the issue in regard to my clients. Moreover, the case would present very interesting issues for appeal, as the Fourth Circuit has already ruled that a statute similar to the MCEMA is preempted.

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