Section 288.2, subdivision (b) suffers from the same commerce clause infirmities as the New York statute considered in Pataki. First, the statute has the practical effect of exporting California's domestic policies into other states, which is impermissible under Edgar v. MITE Corp., supra, 457 U.S. 624 and Healy v. The Beer Institute, supra, 491 U.S. 324. Conduct lawful in a sister state may, because of the nature of the Internet, subject a sender to criminal liability in California even if the sender did not intend his message to be read in California; he can neither prevent Californians from accessing his messages nor prevent messages directed to recipients in other states from passing through California computers. For example, in many states a 19-year-old male may have sexual relations with a 16-year-old female without violating any law, and there would appear to be no impediment to his use of e-mail to send salacious matter intending to seduce even though he knew her to be 16 years old. fn. 7 However, if unbeknownst to the sender a female to whom he sent the matter was (1) a California domiciliary or (2) a casual [80 Cal. App. 4th 214] visitor to California who used a remote retrieval method to open the offending transmission at a California cybercafe, the sender's conduct, lawful under the domestic policies of his home state, subjects him to criminal prosecution in California. I agree with Pataki's observation, modified to fit the California context, that under section 288.2, subdivision (b), "conduct that may be legal in the state in which the user acts can subject the user to prosecution in [California] and thus subordinate the user's home state's policyóperhaps favoring freedom of expression over a more protective stanceóto [California's] local concerns." (Pataki, supra, 969 F.Supp. at p. 177.) This extraterritoriality aspect of section 288.2, subdivision (b) makes it per se invalid under the Edgar/Healy extraterritoriality analysis of the commerce clause.
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