BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2950
                                                                  Page  1

           REPLACE  - October 7, 2008

          CONCURRENCE IN SENATE AMENDMENTS
          AB 2950 (Huffman)
          As Amended July 2, 2008
          Majority vote
           
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          |ASSEMBLY:  |47-20|(May 19, 2008)  |SENATE: |22-12|(August 5,     |
          |           |     |                |        |     |2008)          |
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           Original Committee Reference:    B. & P.  

           SUMMARY  :  Modifies existing prohibitions against unsolicited  
          commercial electronic mail (e-mail).  

           The Senate amendments  :

          1)State legislative intent that the provisions of this bill  
            prohibiting all types of falsity and deception in commercial  
            e-mail messages shall operate within the exception to federal  
            preemption to the full extent permitted by the Controlling the  
            Assault of Non-Solicited Pornography And Marketing Act of 2003  
            (CAN-SPAM Act of 2003).

          2)Specify that it is unlawful for any person to adervitise in a  
            commerical e-mail advertisement if the advertisement sent to  
            or from a California e-mail address contains or is accompanied  
            by a third party's domain name or e-mail address without the  
            persmission of the third party.  However, nothing in this bill  
            shall be construed to affect comparative advertising that  
            references domain names or e-mail addresses.

          3)Define "header information" to mean the source, destination,  
            and routing information attached to an electronic mail  
            message, including the originating domain name and originating  
            e-mail address, and any other information that appears in the  
            line identifying, or purporting to identify, a person  
            initiating the message.

          4)Specify that any enforcement action shall be commenced within  
            three years after the cause of action accrued.

          5)Specify that no cause of action barred under existing law on  








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            the effective date of this bill shall be revived by the  
            enactment of this bill.

          6)Make technical and conforming changes.

           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.

           AS PASSED BY THE ASSEMBLY  , this bill was substantially similar  
          to the version passed by the Senate.

           FISCAL EFFECT  :  This bill is keyed non-fiscal.

           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% 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 the  
          spammers/advertisers."

          This bill follows SB 186 (Murray), Chapter 487, Statutes of  
          2003, which completely banned e-mail spam in California.  To  








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          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.

          This bill as amended in the Senate is consistent with Assembly  
          actions.


           Analysis Prepared by  :    Rebecca May / B. & P. / (916) 319-3301 


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