BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 2950|
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THIRD READING
Bill No: AB 2950
Author: Huffman (D)
Amended: 7/2/08 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 6/24/08
AYES: Corbett, Kuehl, Steinberg
NOES: Harman, Ackerman
ASSEMBLY FLOOR : 47-20, 5/19/08 - See last page for vote
SUBJECT : Commercial e-mail messages: falsity and
deception
SOURCE : Author
DIGEST : This bill, relative to commercial e-mail
messages, (1) defines header information, (2) provides that
venue is appropriate in any county in which the recipient
of the commercial e-mail message resides, (3) allows a
district attorney or a city attorney to bring an action
under California's spam law, and allows the district
attorney or city attorney, if the prevailing plaintiff, to
recover reasonable attorney's fees and costs, (4) specifies
a three-year statute of limitations, and (5) codifies the
intent of the Legislature that the section, which prohibits
falsity and deceptions in commercial e-mail messages, shall
operate within the exception to federal preemption to the
full extent permitted by the CAN-SPAM Act of 2003.
CONTINUED
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ANALYSIS : Existing law provides that it is unlawful for
any person or entity to advertise in a commercial e-mail
advertisement either sent from California or sent to a
California e-mail address if (1) the e-mail contains or is
accompanied by a third-party's domain name without
permission, (2) the e-mail contains or is accompanied by
falsified, misrepresented, or forged header information, as
specified, or (3) the e-mail 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.
(Section 17529.5(a) of the Business and Professions Code)
This bill revises the first prohibition to instead apply to
e-mails that contain or are accompanied by a third-party's
domain name or e-mail address without the permission of the
third party. This bill also states that nothing in the
section may be construed to affect comparative advertising
that references domain names or e-mail addresses.
This bill defines "header information" as the source,
destination, and routing information attached to an
electronic mail message, including the originating domain
name and originating electronic mail address, and any other
information that appears in the line identifying, or
purporting to identify, a person initiating the message.
This bill additionally allows a district attorney or a city
attorney to bring an action under the above provision, and
allow the district attorney or city attorney, if the
prevailing plaintiff, to recover reasonable attorney's fees
and costs.
Existing law specifically permits the attorney general, an
electronic mail service provider, or a recipient of an
unsolicited commercial e-mail advertisement to bring an
action for violation of the above prohibition, and provides
that those parties, if the prevailing plaintiff, may
recover reasonable attorney's fees and costs. (Sections
17529.5(b)(1)(A), (C) of the Business and Professions Code)
Existing law authorizes the recovery of actual damages,
liquidated damages of $1,000 for each unsolicited
commercial e-mail up to $1,000,000, or both. (Section
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17529.5(b)(1)(B) of the Business and Professions Code)
This bill provides that venue is appropriate in any county
in which the recipient of the commercial e-mail message
resides or in any county appropriate under current law
(Section 392 et seq. of the Code of civil Procedure).
This bill provides that any action to enforce a cause of
action pursuant to this section shall be commenced within
three years after the cause of action accrued. No cause of
action barred under existing law on the effective date of
this section shall be revived by its enactment.
This bill codifies the intent of the Legislature that the
section, which prohibits falsity and deceptions in
commercial e-mail messages, shall operate within the
exception to federal preemption to the full extent
permitted by the CAN-SPAM Act of 2003 (17 U.S.C. Section
7707(b)) and any other provision of federal law.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/2/08)
California Alliance for Consumer Protection
Privacy Rights Clearinghouse
OPPOSITION : (Verified 7/2/08)
Connexus Corporation
Hydra LLC
ValueClick, Inc.
ARGUMENTS IN SUPPORT : According to the author:
"[E]xisting laws have not stopped unlawful spam; in fact,
the volume of spam has increased since CAN-SPAM. Filters
have not proven effective, in no small part because
spammers use fraudulent and deceptive means to bypass
filters and hide their identity. A significant amount of
spam is false, or deceptive, either technically or in
terms of the advertised content. Advertisers benefit
from, but deny liability for, their advertising agents'
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unlawful activities. And recipients bear the costs of
spam, not the spammers/advertisers.
"There has been litigation in California and federal
courts under 17529.5, but ambiguities and loopholes in
the law make it too easy for spammers/advertisers to
evade their liability, particularly when defendants lie
under oath and judges do not fully understand the
technological issues."
ARGUMENTS IN OPPOSITION : ValueClick, Inc., Hydra LLC,
and Connexus Corporation, in opposition, suggest three
amendments to provide consistency with federal law
regarding spam e-mails. The opposition maintains that the
suggested amendments are germane because the bill expands
the provisions under which there is liability (for example,
expanding venue increases the location in which an action
may be brought). The suggested amendments are as follows:
1. Defining materially false or misleading (in the context
of e-mail headers) as the definition under federal law
(CAN-SPAM).
2. Stating that a person may not recover damages if they
engaged in conduct that induced the sending of the
commercial e-mail advertisement or otherwise increased
the quantity of commercial e-mail received by that
person.
3. State that in alleging a violation under this section, a
party must state with particularity the circumstances
concerning the materially false or misleading
information.
ASSEMBLY FLOOR :
AYES: Arambula, Beall, Berg, Brownley, Caballero, Charles
Calderon, Carter, Coto, Davis, De La Torre, De Leon,
DeSaulnier, Dymally, Eng, Evans, Feuer, Fuentes,
Furutani, Galgiani, Hancock, Hayashi, Hernandez, Huffman,
Jones, Karnette, Krekorian, Laird, Leno, Levine, Lieber,
Lieu, Mendoza, Mullin, Nava, Nunez, Parra, Portantino,
Price, Ruskin, Salas, Saldana, Solorio, Spitzer,
Strickland, Swanson, Torrico, Wolk
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NOES: Anderson, Berryhill, Blakeslee, DeVore, Duvall,
Fuller, Gaines, Garcia, Huff, Jeffries, Keene, La Malfa,
Maze, Nakanishi, Niello, Silva, Smyth, Tran, Villines,
Walters
NO VOTE RECORDED: Adams, Aghazarian, Benoit, Cook,
Emmerson, Garrick, Horton, Houston, Ma, Plescia, Sharon
Runner, Soto, Bass
RJG:mw 7/2/08 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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