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 
           
           ----------------------------------------------------------------- 
          |Ayes:|Eng, Carter, Hayashi,     |Ayes:|Jones, Evans, Feuer,      |
          |     |Hernandez, Price,         |     |Krekorian, Laird, Levine, |
          |     |Furutani                  |     |Lieber                    |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Emmerson, Plescia         |Nays:|Tran, Adams               |
          |     |                          |     |                          |
           ----------------------------------------------------------------- 

           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