BILL ANALYSIS AB 2950 Page 1 ASSEMBLY THIRD READING AB 2950 (Huffman) As Amended May 8, 2008 Majority vote BUSINESS & PROFESSIONS 6-2 JUDICIARY 7-2 ----------------------------------------------------------------- |Ayes:|Eng, Carter, Hayashi, |Ayes:|Jones, Evans, Feuer, | | |Hernandez, Price, | |Krekorian, Laird, Levine, | | |Furutani | |Lieber | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Emmerson, Plescia |Nays:|Tran, Adams | | | | | | ----------------------------------------------------------------- SUMMARY : Modifies existing prohibitions against unsolicited commercial electronic mail (e-mail). Specifically, this bill : 1)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. 2)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. 3)Specifies that the venue for an action brought under the provisions of this bill is appropriate in any county in which the recipient of the commercial e-mail message resides or any county appropriate pursuant to current law, as specified. 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. FISCAL EFFECT : Unknown. This bill is keyed non-fiscal. AB 2950 Page 2 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 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." 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 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. AB 2950 Page 3 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. Analysis Prepared by : Rebecca May / B. & P. / (916) 319-3301 FN: 0004675