BILL ANALYSIS AB 2950 Page 1 Date of Hearing: April 9, 2008 ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS Mike Eng, Chair AB 2950 (Huffman) - As Amended: April 3, 2008 SUBJECT : Computers: false or deceptive commercial e-mail messages. SUMMARY : Modifies existing prohibitions against unsolicited commercial electronic mail (e-mail). Specifically, this bill : 1)States legislative intent that the provisions of this bill shall operate within the exception to federal preemption to the full extent permitted by the CAN-SPAM Act of 2003 and any other provision of federal law. 2)Prohibits any person or entity from sending, initiating, or knowingly enabling or assisting another to send, initiate, or advertise in a commercial e-mail message that contains falsity or deception in any portion of the message or information attached thereto. 3)Specifies that falsity or deception in any portion of a commercial e-mail message or e-mail attachment includes but is not limited to the following: a) The commercial e-mail message contains or is accompanied by a third party's domain name without the permission of the third party. b) The e-mail advertisement's header information contains or is accompanied by materially false or misleading information, as defined in federal law. c) The e-mail advertisement 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. 4)Authorizes the Attorney General (AG), district attorney or city attorney, e-mail service provider, or a recipient of an unsolicited e-mail to bring action against a person or entity that violates any provision of this bill. AB 2950 Page 2 5)Specifies that a person or entity bringing an action may recover or be awarded any or all of the following: a) Actual damages. b) Liquidated damages are of one thousand dollars ($1,000) for each commercial e-mail message transmitted in violation of the provisions of this bill, up to one million dollars ($1,000,000) per incident. c) Authorizes a court, when it finds that the defendant willfully or knowingly violated the provisions of this bill, to increase the amount of the award to an amount equal to not more than three times the amounts of actual and liquidated damages. d) An order enjoining future violations. 6)Allows the AG, district attorney, city attorney, e-mail service provider, or recipient of the e-mail, to recover reasonable attorney's fees and costs. 7)Specifies that there will be no cause of action under this section against an electronic mail service provider that is only involved in the routine transmission of the commercial e-mail message over its computer network. For this purpose, "routine transmission" does not include actions taken as an advertising network. 8)Specifies that if the court finds that the defendant established and implement practices and procedures reasonably designed to effectively prevent commercial e-mail messages that are in violation of the provisions of this bill, the court shall reduce the liquidated damages recoverable to a maximum of one hundred dollars ($100) for each unsolicited commercial e-mail advertisement, or a maximum of one hundred thousand dollars ($100,000) per incident. 9)Specifies that the provisions of this bill are severable. EXISTING LAW 1)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 AB 2950 Page 3 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. 2)Authorizes the AG, an internet service provider (ISP), or the recipient of an unsolicited commercial e-mail advertisement transmitted in violation of state law to bring an action to recover liquidated damages of $1,000 per unsolicited commercial e-mail advertisement transmitted in violation of provisions, up to $1,000,000 per incident, subject to reduction by the court, as specified. FISCAL EFFECT : Unknown COMMENTS : Purpose of this bill . According to the author's office, "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, today 90 percent 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 he spammers/advertisers." Background . This bill follows SB 186 (Murray) Chapter 487, Statutes of 2003, which completely banned e-mail spam in California. To enforce this ban, SB 186 created a private right of action whereby a consumer or an ISP could sue spammers and recover damages. AB 2950 Page 4 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. According to the author, "Although this federal measure preempted California's complete prohibition of spam, it did not preempt the private right of action consumers and ISPs have against those who send spam with misleading or falsified headers and information, as well as the advertisers of those products. California's current law?is better than most states' laws, by specifying that individual recipients of spam can bring legal action, setting liquidated damages at $1000 per spam, and authorizing attorney's fees for a prevailing plaintiff, but there are still too many loopholes and ambiguities. Existing laws have not stopped unlawful spam; in fact, the volume of spam has increased since CAN-SPAM." CAN-SPAM . 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. The FCC's ban on sending unwanted e-mail messages to wireless devices applies to all "commercial messages." The CAN-SPAM Act defines commercial messages as those for which the primary purpose is to advertise or promote a commercial product or service. The FCC's ban does not cover "transactional or relationship" messages, or notices to facilitate a transaction already agreed to by the consumer. These messages would include statements about an existing account or warranty information about a product purchased by the consumer. The FCC's ban also does not cover non-commercial messages, such as messages about candidates for public office. Previous legislation . SB 186 (Murray) Chapter 487, Statutes of 2003, prohibits the sending of unsolicited e-mail ads from California or to a California e-mail address and modifies the provisions governing the recipient of unsolicited electronic mail (e-mail) advertisements (ads) to contact the sender to AB 2950 Page 5 remove his or her e-mail address from the sender's mailing list, and Double-referred . This bill is double-referred to the Assembly Judiciary Committee. Further analysis of the legal implications of this bill will be reviewed in that committee's analysis. REGISTERED SUPPORT / OPPOSITION : Support None on file. Opposition None on file. Analysis Prepared by : Rebecca May / B. & P. / (916) 319-3301