In 2004, California was about to have the
strongest anti-spam law in the country (Business & Professions Code § 17529), until it was largely
preempted by the federal SURE-GO-AHEAD-YOU-CAN-SPAM Act. It is
generally acknowledged that CAN-SPAM was a failure; the amount of spam has
increased dramatically since then... now comprising 90% of all email. CAN-SPAM even made much
spam legal, as long as it meets certain conditions.
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:
© 2002-present, Daniel Balsam