BILL ANALYSIS
AB 2950
Page 1
ASSEMBLY THIRD READING
AB 2950 (Huffman)
As Amended May 8, 2008
Majority vote
BUSINESS & PROFESSIONS 6-2 JUDICIARY 7-2
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|Ayes:|Eng, Carter, Hayashi, |Ayes:|Jones, Evans, Feuer, |
| |Hernandez, Price, | |Krekorian, Laird, Levine, |
| |Furutani | |Lieber |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Emmerson, Plescia |Nays:|Tran, Adams |
| | | | |
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SUMMARY : Modifies existing prohibitions against unsolicited
commercial electronic mail (e-mail). Specifically, this bill :
1)Authorizes the Attorney General (AG), district attorney or
city attorney, e-mail service provider, or a recipient of an
unsolicited e-mail to bring action against a person or entity
that violates any provision of this bill.
2)Allows the AG, district attorney, city attorney, e-mail
service provider, or recipient of the e-mail, to recover
reasonable attorney's fees and costs.
3)Specifies that the venue for an action brought under the
provisions of this bill is appropriate in any county in which
the recipient of the commercial e-mail message resides or any
county appropriate pursuant to current law, as specified.
EXISTING 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 third 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.
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal.
AB 2950
Page 2
COMMENTS : According to the author, "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?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 estimated that spam, including
false and deceptive spam, cost California organizations well
over two billion dollars ($2,000,000,000).
"Despite CAN-SPAM [Controlling the Assault of Non-Solicited
Pornography And Marketing Act of 2003], today 90 percent of all
e-mail is spam. Filters have not proven effective, and spam is
threatening the viability of e-mail as a means of communication,
for individuals and businesses alike. A significant amount of
spam has false or deceptive content, either technically or in
terms of the advertised content. Advertisers benefit from, but
deny liability for, their advertising agents' unlawful
activities. Spammers are adept at hiding their tracks.
Recipients bear the costs of spam, not he spammers/advertisers."
This bill follows SB 186 (Murray), Chapter 487, Statutes of
2003, which completely banned e-mail spam in California. To
enforce this ban, SB 186 created a private right of action
whereby a consumer or an Internet service provider could sue
spammers and recover damages.
Within months of its passage, SB 186 was preempted by the
federal CAN-SPAM Act of 2003 which allows for spam as long as
various conditions are met. These conditions include offering
the ability to opt-out, a valid e-mail address contact, and the
disclosure of the name and location of the spam sender.
In 2003, Congress enacted CAN-SPAM to curb spam. As required by
CAN-SPAM, the Federal Communications Commission (FCC) adopted
rules that prohibit sending unwanted commercial e-mail messages
to wireless devices without prior permission. This ban took
effect in March 2005. In addition, the Federal Trade Commission
adopted detailed rules that restrict sending unwanted commercial
e-mail messages to computers.
AB 2950
Page 3
The FCC's ban on sending unwanted e-mail messages to wireless
devices applies to all "commercial messages." The CAN-SPAM Act
defines commercial messages as those for which the primary
purpose is to advertise or promote a commercial product or
service. The FCC's ban does not cover "transactional or
relationship" messages, or notices to facilitate a transaction
already agreed to by the consumer. These messages would include
statements about an existing account or warranty information
about a product purchased by the consumer. The FCC's ban also
does not cover non-commercial messages, such as messages about
candidates for public office.
Analysis Prepared by : Rebecca May / B. & P. / (916) 319-3301
FN: 0004675