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The California First District Court of Appeal on Wednesday upheld a California law that places restrictions on unsolicited electronic junk mail. The court declared that California Business and Professions Code � 17538.4 — which was amended in 1998 to regulate e-mail as well as facsimiles — does not violate the U.S. Constitution’s Commerce Clause because “it does not directly regulate commerce occurring wholly outside the state.” “It expressly applies only when [unsolicited commercial e-mail] is sent to a California resident by means of an electronic-mail service provider who has equipment in the state,” Justice Paul Haerle wrote. Justices J. Anthony Kline and James Lambden concurred in the ruling. Ferguson v. Friendfinders Inc., A092653, was filed in San Francisco Superior Court in 1999 by Mark Ferguson, who claimed that Friendfinders and Conru Interactive Inc. had failed to comply with the e-mail restrictions in the Business and Professions Code. He specifically accused the two Palo Alto, companies of not beginning subject lines with the characters ADV to announce that their mail was an advertisement, not including information about how recipients could be removed from the mailing list and not providing a valid return e-mail address. Ferguson also claimed the companies altered the messages to mask their identities. Last July, Judge David Garcia sustained a demurrer brought by the defendants, ruling that the state law violated the so-called dormant Commerce Clause, which limits state regulation of interstate commerce. In overturning Garcia, the appeal court also refused to follow a New York federal court, which in American Libraries Association v. Pataki, 969 F.Supp. 160, ruled in 1997 that a state law making it a crime to use a computer to disseminate obscene materials to a minor violated the Commerce Clause. “The Pataki court’s conclusions about the extraterritorial effects of the New York law in that case do not apply to Section 17538.4,” Haerle wrote. “The statute at issue in Pataki applied to all Internet activity, and the court’s comments about the absence of geographic sensitivity were made [in] that context.” “As we have already explained,” he continued, “Section 17538.4 does not regulate the Internet. It regulates e-mail users who send [spam] to California residents via equipment located in California.” The justices also found that California has a legitimate interest in protecting its citizens from the “harmful effects” of unsolicited e-mail and that � 17538.4 furthers that purpose. “By requiring disclosure of the advertising and/or adult nature of an unsolicited e-mail in the subject line,” they said, “Section 17538.4 establishes a quick and simple way of identifying [spam] without having to read it first.” The justices also took a swipe at the whole concept of unsolicited e-mail by pointing out that just like traditional paper junk mail, spam can be “annoying and waste time,” and has caused some trouble. “These additional problems have developed because [spam] is easy and inexpensive to create, but difficult and costly to eliminate,” Haerle wrote. Spam “can be and usually is sent to many recipients at one time at little or no cost to the sender.”

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