BILL NUMBER: AB 2950 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 3, 2008
INTRODUCED BY Assembly Member Huffman
FEBRUARY 22, 2008
An act relating to commercial e-mail messages.
An act to amend Section 17529.5 of the Business and Professions
Code, relating to advertising.
LEGISLATIVE COUNSEL'S DIGEST
AB 2950, as amended, Huffman. Computers: false or deceptive
commercial e-mail messages.
Existing state law prohibits a person or entity from advertising
in a commercial e-mail advertisement that is sent either from
California or to a California e-mail address if the e-mail contains
or is accompanied by a 3rd party's domain name without permission,
contains or is accompanied by falsified, misrepresented, or forged
header information, or has a misleading subject line, and makes a
violation of the prohibition a misdemeanor. Existing law authorizes
the Attorney General, an e-mail service provider, or the recipient of
an unsolicited commercial e-mail advertisement transmitted in
violation of these provisions to bring an action to recover
liquidated damages of $1,000 per unsolicited commercial e-mail
advertisement transmitted in violation of the provisions, up to
$1,000,000 per incident, subject to reduction by the court, as
specified.
This bill would declare the intent of the Legislature to prohibit
false and deceptive spam, as specified.
This bill would instead make it unlawful and a misdemeanor for any
person or entity to send, initiate, or advertise in, or knowingly
enable another to send, initiate, or advertise in, a commercial
e-mail message that contains falsity or deception in any portion of
the message or information attached thereto and that is either sent
from California or to a California e-mail address. The bill would
also authorize a district attorney or city attorney to bring an
action for a violation of these provisions, and would authorize a
court to increase or reduce damages, as specified, and to award
injunctive relief.
Because a violation of the provisions of this bill would be a
crime, it would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 17529.5 of the
Business and Professions Code is amended to read:
17529.5. (a) It is the intent of the Legislature that this
section, which prohibits falsity and deception in commercial e-mail
messages and attachments, shall operate within the exception to
federal preemption to the full extent permitted by the CAN-SPAM Act
of 2003 (17 U.S.C. Sec. 7707(b)) and any other provision of federal
law.
(b) It is unlawful for any person or entity to
send, initiate, or advertise in , or knowingly
enable or assist another to send, initiate or advertise in, a
commercial e-mail advertisement message that
contains falsity or deception in any portion of the message or
information attached thereto and that is either sent from
California or sent to a California electronic mail address
under any of the following circumstances . For the
purposes of this section, falsity or deception in any portion of a
commercial e-mail message or any information attached thereto
includes, but is not limited to, any of the following :
(1) The commercial e-mail advertisement
message contains or is accompanied by a
third-party's domain name without the permission of the third party.
Accurate source or destination information shall not constitute
a violation of this paragraph.
(2) The e-mail advertisement contains or is accompanied by
falsified, misrepresented, or forged header
information that is materially false or misleading, as defined
in Section 7704 of Title 15 of the United States Code . This
paragraph does not apply to truthful information used by a third
party who has been lawfully authorized by the advertiser to use that
information.
(3) The e-mail advertisement has a subject line that a person
knows would be likely to mislead a recipient, acting reasonably under
the circumstances, about a material fact regarding the contents or
subject matter of the message.
(b)
(c) (1) (A) In addition to any other remedies provided
by any other provision of law, the following may bring an action
against a person or entity that violates any provision of this
section:
(i) The Attorney General , a district attorney, or
the city attorney .
(ii) An electronic mail service provider.
(iii) A recipient of an unsolicited commercial e-mail
advertisement, as defined in Section 17529.1.
(B) A person or entity bringing an action pursuant to subparagraph
(A) may recover either or both or be awarded
any or all of the following:
(i) Actual damages.
(ii) Liquidated damages of one thousand dollars ($1,000) for each
unsolicited commercial e-mail
advertisement message transmitted in violation
of this section, up to one million dollars ($1,000,000) per incident.
(iii) If the court finds that the defendant willfully or knowingly
violated this section, the court may, in its discretion, increase
the amount of the award to an amount equal to not more than three
times the amount otherwise awarded pursuant to clauses (i) and (ii)
combined.
(iv) An order enjoining violations of this section.
(C) The recipient, an electronic mail service provider,
or the Attorney General, a district attorney, or a
city attorney, if the prevailing plaintiff, may also recover
reasonable attorney's fees and costs.
(D) However, there shall not be a cause of action under this
section against an electronic mail service provider that is only
involved in the routine transmission of the commercial
e-mail advertisement message over its
computer network. For purposes of this section, "routine
transmission" does not include actions taken as an advertising
network.
(2) If the court finds that the defendant established and
implemented, with due care, practices and procedures reasonably
designed to effectively prevent unsolicited
commercial e-mail advertisements messages
that are in violation of this section, the court shall reduce
the liquidated damages recoverable under paragraph (1) to a maximum
of one hundred dollars ($100) for each unsolicited commercial e-mail
advertisement, or a maximum of one hundred thousand dollars
($100,000) per incident.
(3) (A) A person who has brought an action against a party under
this section shall not bring an action against that party under
Section 17529.8 or 17538.45 for the same commercial e-mail
advertisement, as defined in subdivision (c) of Section 17529.1
message or incident .
(B) A person who has brought an action against a party under
Section 17529.8 or 17538.45 shall not bring an action against that
party under this section for the same commercial e-mail
advertisement, as defined in subdivision (c) of Section 17529.1
message or incident .
(c)
(d) A violation of this section is a misdemeanor,
punishable by a fine of not more than one thousand dollars ($1,000),
imprisonment in a county jail for not more than six months, or both
that fine and imprisonment.
(e) The provisions of this section are severable. If any provision
of this section or its application is held invalid, the invalidity
shall not affect any other provision or application that can be given
effect without the invalid provision or application.
SEC. 2. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. The Legislature hereby finds and
declares all of the following:
(a) Prohibiting false and deceptive commercial e-mail is a matter
vitally affecting the public interest for the purpose of protecting
consumers and businesses in California. Falsity or deception in
commercial e-mail messages is not reasonable or necessary for the
development and preservation of commerce, is unconscionable, and
demands consumer protection.
(b) The economic harm and invasion of privacy resulting from the
transmission and receipt of false and deceptive commercial e-mail
constitutes a threat to the welfare of residents of California. It is
the intent of the Legislature that this act shall afford maximum
protection to consumer and business recipients of commercial e-mail
messages.
(c) Because there are limited resources for the Attorney General
to undertake action against out-of-state spammers, authorizing a
private right of action for recipients of unlawful spam is necessary
in order to protect consumers and further efforts to combat unlawful
spam.
(d) False and deceptive commercial e-mail costs California
residents more than one billion dollars ($1,000,000,000) per year as
a result of the following:
(1) The need to acquire additional capacity for computer systems.
(2) The need to acquire software programs to filter and control
false and deceptive commercial e-mail messages.
(3) The time and productivity lost when businesses and public
bodies must devote personnel resources to the following:
(A) Creating and maintaining e-mail message filters for users,
computers, networks, and e-mail service providers.
(B) Removing infestations of false and deceptive commercial e-mail
messages from computers, networks, and e-mail inboxes.
(C) Unclogging transmission paths.
(D) Repairing and restarting computer systems that have
experienced system failures resulting from false and deceptive
commercial e-mail messages.
(E) Disruptions of legitimate e-mail communications and
abandonment of e-mail addresses.
(e) Federal and state laws have proven inadequate to prevent the
harm to the public welfare that results from the transmission and
receipt of false and deceptive commercial e-mail messages.
(f) Existing federal law has preempted the regulation of truthful
and nondeceptive commercial e-mail advertisements. Consequently, the
Legislature only seeks to regulate false and deceptive commercial
e-mail advertisements, until such time as federal law is amended.
(g) At the present time, over 90 percent of all e-mail traffic in
the United States is comprised of unsolicited commercial e-mail
advertisements (spam), including false and deceptive spam.
(h) The increase in spam is not only an annoyance but is also an
increasing drain on corporate budgets and possibly a threat to the
continued usefulness of the most successful tool of the computer age.
(i) Complaints from irate businesses and home-computer users
regarding spam have skyrocketed, and polls have reported that 74
percent of respondents favor making mass spamming illegal and only 12
percent are opposed, and that 80 percent of respondents consider
spam very annoying.
(j) According to Ferris Research Incorporated, a San Francisco
consulting group, in 2005, spam cost United States organizations more
than seventeen billion dollars ($17,000,000,000), including lost
productivity and the additional equipment, software, and manpower
needed to combat the problem. California represents 12 percent of the
United States population with an emphasis on technology business and
it is, therefore, estimated that spam, including false and deceptive
spam, cost California organizations well over two billion dollars
($2,000,000,000).
(k) Like junk fax, false and deceptive spam imposes a cost on
users, using up valuable storage space in e-mail inboxes, as well as
costly computer bandwidth, and on networks and the computer servers
that power them, and discourages people from using e-mail.
(l) Spam filters have not proven effective because they are
subject to spammers' ever-changing attempts at circumvention.
(m) Like traditional paper "junk" mail, spam can be annoying and
waste time, but spam causes many additional problems because it is
easy and virtually free to create, but difficult and costly to
eliminate.
(n) The "cost shifting" from deceptive spammers to Internet
businesses and e-mail users has been likened to sending junk mail
with postage due or making telemarketing calls to someone's
pay-per-minute cellular phone.
(o) Many spammers have become so adept at masking their tracks
that they are rarely found, often due to return addresses that show
up on the display as "unknown," are fake, or are located outside of
the United States. Spammers are technologically sophisticated and
they can adjust their systems to counter special filters and other
barriers against spam and can electronically commandeer unprotected
computers, turning them into spam-launching weapons of mass
production. At present, more than 80 percent of spam is sent through
compromised computers, known as "zombie" machines.
(p) There is a need to regulate the advertisers who promote their
products and services through false or deceptive spam, as well as the
actual senders of false or deceptive spam, because the advertisers
are the ultimate beneficiaries of that spam and because spammers who
actually "hit the send key" can be impossible to track down and are
often outside of California or outside of the United States.
(q) A significant amount of spam, including false and deceptive
spam, is sent by affiliates or subaffiliates who act as marketing
agents for the advertisers, through advertising networks that act as
middlemen to connect advertisers with spammers, or through
third-party e-mailing services. These advertising networks and
e-mailing services also have a financial stake in any transactions
resulting from this spam.
(r) In addition, false and deceptive spam is responsible for virus
proliferation that can cause tremendous damage both to individual
computers and to business systems.
(s) It is not necessary that recipients attempt to opt out of
spam. Indeed, to attempt to do so is often ineffectual and often
results in being a direct method of placing one's e-mail address on
even more spammers' lists. E-mail service providers and the
California Attorney General advise consumers not to attempt to opt
out of spam lists. Furthermore, clicking on an "opt-out" line can
place the recipient's computer at high risk of being compromised or
infected with malicious software.
(t) Many, if not most, e-mail users have been forced to use spam
filters to automatically sort and delete e-mails so that the user
does not have to open or read spams unless they specifically desire
to. However, these spam filters have not proven to be 100 percent
effective, as spammers continually find new ways to bypass or defeat
the spam filters, and sometimes the filters miscategorize solicited
e-mail as spam.
(u) Because of the above problems, it is the intent of the
Legislature to prohibit false and deceptive spam.