INTRODUCED BY   Assembly Member Huffman

                        FEBRUARY 22, 2008

   An act relating to commercial e-mail messages.


   AB 2950, as introduced, 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
   This bill would declare the intent of the Legislature to prohibit
false and deceptive spam, as specified.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


  SECTION 1.  The Legislature hereby finds and declares all of the
   (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
   (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
   (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
   (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
   (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.