But, even as federal law mostly preempted state anti-spam laws, Congress expressly allowed the states to regulate false & deceptive commercial email, 15 U.S.C. § 7707(b), so Bus. & Prof. Code § 17529.5 is still in effect.
However, some spammers have been able to exploit loopholes and ambiguities in the law, and judges don't always understand the technology.
Which is why I co-wrote a stronger anti-spam law for California that Assembly Member Jared Huffman introduced as AB 2950 in the 2007-2008 session.
Read a 1-page fact sheet.
Read the original version in html or pdf.
The San Francisco Chronicle was the first to report on the bill.
Importantly, the bill only targeted false & deceptive commercial email... and last time I checked, there is no First Amendment right to false & deceptive commercial speech. Companies that advertise in truthful email will not be impacted by the new bill. So you have to wonder, Who is going to oppose a bill that only targets falsity & deception?
Answer: the American Electronics Association opposed the bill initially, which was odd, because reducing false & deceptive spam – in addition to benefitting consumers – will also benefit AEA member companies, as ISPs, as recipients of commercial email, and as legitimate advertisers. Although the AEA publicly promised to work with us to strengthen current law, it turns out their problem is actually with current law, in particular, the fact that the law holds the advertisers strictly liable for advertising in false & deceptive spam sent by their affiliates. In other words, the AEA really wanted to take California law backwards. But the fact is, advertisers are [unjustly] enriched by false & deceptive spam, so they should be held liable. The AEA eventually agreed to several improvements to current law (clarifying venue, specifying statute of limitations, and adding standing for district/city attorneys), but objected to the real substantive proposals (adding injunctive power, specifying that false domain registrations violate the law, prohibiting deliberate misspellings in subject lines and sending spam from multiple domain names to deceive spam filters) and is trying to weaken the attorneys'-fees-for-prevailing-plaintiff provision, which is common for consumer protection statutes. However, when those provisions were removed, the AEA took a neutral stance on the bill.
In the end, the bill was supported by The California Alliance for Consumer Protection, Consumer Watchdog, Privacy Rights Clearinghouse, and Prof. Lawrence Lessig of Stanford Law School. The bill was opposed by three California companies who are – allegedly – spammers, spamvertisers, or spam networks themselves. One of them has even been sued by the Federal Trade Commission.
The Legislature passed AB 2950 in August 2008, albeit in a somewhat weakened version than what we had originally intended. Read the final enrolled version in html or pdf.
Unfortunately, Gov. Schwarzenegger vetoed AB 2950. Recall, due to federal preemption, California can only regulate false & deceptive spam. So what possible grounds could there be to veto the bill? What societal benefit can there possibly be for false & deceptive spam? Let's read along:
| Text of Veto Message | Dan's Commentary | |
|
To the Members of the California
State Assembly: |
||
| In 2005, the Federal Communications Commission adopted rules that prohibit sending unwanted commercial e-mail messages to wireless devices without prior permission. | While this may be true, it's not really relevant. We're dealing with spam email in general, not limited to wireless devices. The operative federal regulations are included in the CAN-SPAM Act of 2003 (effective date: January 1, 2004), which is enforced by the Federal Trade Commission. | |
| In addition, California's anti-spam laws are among the toughest in the nation. | True. But we could have made them even tougher. Why not be tough, against false & deceptive spam? | |
| Given these circumstances, AB 2950 appears to be unnecessary | Since the "FCC" sentence above is irrelevant, this conclusion does not logically follow. Nor is it accurate, because the volume of spam has increased despite the California and federal law. What we need is stronger laws and more enforcement. | |
| and may possibly invite excessive litigation | Not necessary true. AB 2950 could have reduced litigation by clarifying some of the ambiguities of the current law. Besides, no litigation over false & deceptive email is "excessive" litigation. | |
| for a nuisance that does not result in any damages or losses. | Now this is just flat-out wrong. The California Legislature found back in 2003 that spam would cost $10 billion, and estimated that $1.2 billion of that would be felt in California. Numerous other authorities have documented that spam does have real costs | |
|
For these reasons I am unable to sign this bill. Sincerely, Arnold Schwarzenegger |
Since all of the premises are flawed, the decision makes no sense. Sounds to me like the lobbyists got to him. |
Now that we know our enemy a little better, and the misrepresentations of fact and
law that they are willing to tell the Legislature and the Governor,
we just might give it another shot. Take that, spammer.
