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
FN: 0005908