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[Karl Note: Governor Gray Davis, on
his way out, desperate for any semblance of legitimacy he can steal from his
waning days, signed into law a so-called "tough anti-spam" law. It was and
is an empty gesture.
This empty gesture, like any useful empty gesture, will have great popular appeal. I personally detest spam and would like to see an effective method of eliminating it.
In fact the law is worse than useless since
it will bring down the mighty weight of the State of California on people whose
names were counterfeited by the real spammer so that the real company would have
to defend itself -- guilty until proven innocent.
Recently, during the big scare about the "worm" and other evils, and amidst the calls by Microsoft to get the repair patches freely available on their web site, I received a very authentic-looking eMail "from" Microsoft. It had their exact appearance, and said it was "from" Microsoft. It had an attachment. The top few lines of the message said that I was in danger of being infected if I did not immediately click on the free link to install the "Microsoft patch." Of course it was a fake, and of course, it carried the very worm that it warned against.
These are computer terrorists, not much different from those in Iraq who bomb and kill. The morals are quite similar -- to cause chaos -- to destroy.
Fortunately I did NOT open these messages, but deleted them immediately. How many are not aware of this deceit and open these messages??
Will this new Anti-Spam law now go after Microsoft for sending this dangerous message?
Will Microsoft have to spend money to defend itself? After all, Microsoft has lots of money and would be an attractive target for a cash-strapped State, like California.
In the meantime the spammer is far more
clever than any of the new hundreds of California State employees who would
supposedly "unravel" the offending eMail to see where it really came from, and
how the recipient's eMail address was really found. (Image Left:
Davis and his Mentor, Bill)
There will be court challenges. Perhaps some liberal judges will OK this law, but in the end it will be thrown out -- adding to the public disdain of the justice system. Why thrown out?
The reasons are in two areas.
First, much of the law will be found a violation of the First Amendment to the US Constitution.
Next, it is vague and impossible to enforce. Every spammer can quickly find a way to avoid this law.
Here is an official digest of the law:
The bill would instead prohibit a person or entity located in California from initiating or advertising in unsolicited commercial e-mail advertisements. The
bill would prohibit a person or entity not located in California from
initiating or advertising in unsolicited commercial e-mail
advertisements sent to a California e-mail address. The bill would
also prohibit a person or entity from collecting e-mail addresses or
registering multiple e-mail addresses for the purpose of initiating
or advertising in an unsolicited commercial e-mail advertisement from
California or to a California e-mail address. The bill would
prohibit a person or entity from using a commercial e-mail
advertisement containing certain falsified, misrepresented, obscured,
or misleading information. (source)
The main problem is the practicality. It is probably unconstitutional, but mostly it will be impossible to enforce, accept there will be accusations against innocent companies and they will have to spend money to defend themselves. The usual "Davis Deal" to make Californian voters feel good about him.
A spammer can fake the "return address" in an eMail. He can place a fake toll free number in his mail. He can have a "unsubscribe" button which does nothing. He can send his message through an "anonymous" relay point, so that it is impossible to find the true sender. I am not an expert on "spamming programs" but I know they exist. Here is one, I believe. There are many available on the net and the generally all run rings around this foolish California law.
Much of this electronic mischief originates in Russia. After all there were many talented electronic engineers, and a rather poor job-market there just now.
There are many spams currently offering a
way to enlarge your penis. There may be actually someone wanting to sell
the sucker some cream or pill, but I suspect that most of these spams are NOT
designed to sell anything, and are NOT designed to return any money to the
spammer -- but just to create chaos and destruction.
So far they are succeeding, with Gray Davis notwithstanding! The anti-spam law is an empty gesture that, like most of Davis' other actions, sounds good to the gullible, and costs money to the productive.
Calif. Enacts Tough Anti-Spam Law
California Spam Bill Turns Up Heat on Advertisers
Report: Spam Cost Corporate America $9B Last Year
Actual California State Law -- Senate Version -- Passed
mySMTP - high speed personal
SMTP relay server
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Calif. Enacts Tough
Anti-Spam Law Amid one of the biggest political crises in state history, California Gov. Gray Davis signed a bill this week designed to prohibit spam and penalizes advertisers and others who send unsolicited e-mail messages hawking sexual hankers, prescriptions, and other products. The new law, which takes effect Jan. 1, empowers California residents, the state attorney general and Internet providers to seek civil damages against spammers amounting to $1,000 per e-mail and $1 million per incident. "This is the toughest bill of its kind in the nation, and will hopefully be a model," said Sen. Kevin Murray, D-Los Angeles, who introduced the bill. "There are no loopholes, no way of getting around it." The legislation, dubbed SB 186 in committee, builds on current California anti-spam laws that requires commercial e-mail to carry "ADV" or "ADV:ADLT" in the subject line. The new law outlaws unwanted e-mails sent from or to someone in California or through a server in the state. It also prohibits the collecting of e-mail addresses on the Internet in California for the purpose of advertising. According to the language of the new law, customers would have to opt-in to any commercial e-mail, meaning they specifically agree to receive it. Individuals will be able to receive e-mail from companies they have done business with, but even those companies will be required to give customers the ability to opt-out of future solicitations. Murray and other supporters said they hope the bill helps smaller businesses who rely on e-mail for orders but are losing money due to screen clutter. A recent study by San Francisco-based marketing firm Ferris Research estimated that unwanted e-mails cost U.S. companies nearly $9 billion in lost productivity, consumption of communication bandwidth and drain of technical support. "California is sending a clear message to Internet spammers," Davis said in a statement that referred to the Ferris study. "We will not allow you to litter the information superhighway with e-mail trash." Still, reactions to the legislation were mixed. At the popular Web site craigslist.org, founder Craig Newmark said the law will provide him with legal recourse against spammers who seek addresses on his site. At the Aberdeen Group in Boston, however, Kent Allen, research director for the Internet Advertising division, said the bill is too weak to wield any significant impact. Allen explained that the legislation is problematic because it does not define spam explicitly, and does not provide a definition for what constitutes an "unsolicited" message. "Spam is a major annoyance, but legislation is not the answer," he told internetnews.com. "Often, what you cannot define, you cannot defend against effectively." Still others said that while the bill is explicit enough, it will be difficult to stop unwanted mail without new technologies that can target the messages objectively. "This bill will create a lot of nusance for legitimate marketers and not reduce by one e-mail the amount of spam," Ken Hirschman, general counsel of e-mail marketing firm Digital Impact told the San Francisco Chronicle. "It will lead to frivolous lawsuits against legitimate marketers." However the situation plays out, the new law is not the first piece of California legislation designed to fight unwanted electronic information. Last year, Davis signed what he called "Leave Us Alone" consumer protection legislation designed to put the kibosh on unsolicited faxes and cell phone text messages. Today, 35 other states have anti-spam measures on the books, and Congress is debating a number of spam bills this fall. |
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California Spam Bill
Turns Up Heat on Advertisers The California legislature passed a stringent anti-spam bill last week that bans unsolicited commercial e-mails and gives state residents the right to sue violators for up to $1 million in damages. The bill, SB 186, now awaits action by Gov. Gray Davis, whose signature would make the state's anti-spam legislation among the toughest in the nation. Under California law, Davis has until Oct. 11 to sign the bill, although the turmoil over the recall vote, slated for Oct. 7, could make action come sooner. Introduced by state Sen. Kevin Murray, the measure bans unsolicited commercial e-mail unless the sender has a business relationship with the receiver. It covers e-mail either sent from California or to California residents. Those receiving unsolicited e-mail have the right to sue for $1,000 per message, up to $1 million. Trevor Hughes, executive director of the National Advertising Initiative's e-mail service provider coalition, said the bill would end up in more lawsuits, not less spam. "The public policy here is we're trying to reduce spam," he said. "The filter we should look at is whether we reduce spam. My sense is this won't. It's just going to limit and hinder an otherwise growing and robust industry" of legitimate e-mail marketers. Hughes said the right of consumers to sue was particularly troublesome in light of the experience of Utah, which has a similar provision. There, a single law firm has resulted in more than a thousand suits against e-mail marketers with litigants hoping for a quick settlement, Hughes said. "We're worried that California will become Utah on steroids," he said. "We're worried the private cause of action will be abused by plaintiffs' attorneys." A further worry for some is that Murray's bill also targets the advertisers instead of just the senders. "There is a need to regulate the advertisers who use spam, as well as the actual spammers, because the actual spammers can be difficult to track down due to some return addresses that show up on the display as 'unknown' and many others being obvious fakes and they are often located offshore," the bill reads. "The true beneficiaries of spam are the advertisers who benefit from the marketing derived from the advertisements." Quinn Jalli, an executive with e-mail management company MindShare Design who advised legislators on the bill, said it was unrealistic to put such a burden (and legal liability) on advertisers. "The bottom line is we all know the person who pushes send button should know that whoever they're sending to is an opt-in recipient," said "The advertiser is not always the one pushing the send button." The bill requires that all commercial e-mail solicitations contain a valid unsubscribe link or a toll-free number for removal from the mailing list. It also departs from other spam bills that allow businesses to avoid penalties by showing an unsolicited e-mail was a mistake. SB 186 fines businesses $100 per mistaken e-mail up to $100,000. The California bill would build on the current California anti-spam bill, which requires commercial e-mail to carry "ADV" or "ADV:ADLT." California is one of 35 states with anti-spam measures on the books; Congress is debating a number of spam bills this fall. "Our real hope is in federal legislation," Jalli said. "This law is just emblematic of what our industry faces nationwide." |
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Report: Spam Cost
Corporate America $9B Last Year Ferris computed the cost of spam by calculating its costly effects in three areas: loss of worker productivity; consumption of bandwidth and other tech resources; and use of technical support time. The researcher found that productivity loss accounted for 40 percent of the drain. "In the grand scheme of things, it's a big drag," said Marten Nelson, a research analyst at Ferris. "It's about $10 per user per month. That's a considerable cost." The finding stands in stark contrast to the conclusion of the Pew Internet & American Life Project, which found Internet users mostly unbothered by spam in the workplace. In a telephone poll of 2,500 adults, 71 percent said "little" of their work e-mail was spam. The survey's authors said most of the alarmist talk about spam was generated by what it called "power e-mailers," who make up a small percentage of the population. Pew concluded that the spam problem was mostly confined to personal e-mail accounts with the major free providers, like MSN's Hotmail and Yahoo!. Ferris agreed that spam is a greater problem for general e-mail accounts, but said that it remains a serious problem for corporate accounts too. The researcher figured spam accounts for 30 percent of all e-mail sent to U.S. Internet service providers. For corporate accounts, the researcher estimates spam makes up 15 to 20 percent of all e-mail. The figures generally follow the recent findings of others in the industry. Brightmail, an anti-spam software maker, reported that spam will account for 40 percent of e-mail traffic in 2003. Nelson said the average corporate e-mail user receives between three and four spam messages a day, wasting an average of 4.5 seconds on each message. Over time, he said these figures add up to considerable lost productivity, particularly when accidentally deleted e-mails are taken into account. Meanwhile, user frustration is also on the rise. Last week, a Harris Poll found an overwhelming majority of respondents favoring a legal remedy to spam's proliferation. While spam is not unique to the U.S., Ferris found that it is more of a problem here than elsewhere. In Europe, Ferris pegged the cost of spam at $2.5 billion, while a bigger problem is the growing use of mobile messaging for unwanted commercial messages. In fighting spam, Ferris points to four approaches: educating users; industry standards; legislation; and technological fixes. Of the four, the researcher concludes that technology, at this point, offers corporations the best defense. Nelson said spam was quickly moving up the corporate chain from an IT problem to a productivity problem, mostly because of the nature of spam. Since top executives fit the profile of heavy e-mail users most likely to be affected by a large amount of spam, their attention is often focused on the problem. "One of the challenges for most organizations is to find out what is really affected by spam," he said. |
Source
Californians have new ammunition in their fight against spam, thanks to a court decision this week that could make it easier to drop off from unwanted e-mail marketing lists.
A California appeals court Wednesday upheld the state's anti-spam law, ruling that it does not violate a clause of the U.S. Constitution.
California's law "does not discriminate against or directly regulate or control interstate commerce," the court wrote in its opinion. "Therefore, (the law) does not violate the commerce clause if it serves a legitimate local public interest and if the burden it imposes on interstate commerce is not excessive when viewed in light of its local benefits."
Congress has yet to pass federal legislation governing commercial e-mail, so consumers are forced to seek protection under state laws. Although this week's California court decision is a win for anti-spam advocates and consumers, it's not necessarily the last word on the legitimacy of state laws prohibiting unwanted commercial e-mail.
California's anti-spam law requires unsolicited messages to include a viable return address or a toll-free phone number that recipients can use to tell the sender to stop sending documents. The statute also requires unsolicited e-mail to include "ADV:," for advertisement, in the subject line of the message--or in cases where the advertisements relate to adult material, "ADV:ADLT." Violating the law is a misdemeanor.
Although such requirements are designed to help recipients keep unwanted e-mail from their in-boxes, state laws governing spam may cause complications for people doing business on the Internet. Owen Seitel, a partner at the law firm Idell Berman & Seitel, which is not involved in the case, said that as more states fight junk e-mail, Web-based businesses will have to comply with a "patchwork of laws and ordinances which are going to thwart the growth of the Internet."
For instance, Seitel said that if each state required different e-mail headers, senders would have to comply with 50 styles, making it "virtually impossible to do business."
The appeals court decision "is not the end," Seitel said. "Basically, this decision could be obliterated if the U.S. Congress passes legislation in this area that's going to override any state statute in this area. But until that happens, and if you are sending e-mail in the State of California, this is the law."
Consumer advocates applauded the California decision, which follows a recent victory in Washington state. In October, the Supreme Court refused to review a constitutional challenge to a tough Washington law regarding junk e-mail. Anti-spam advocates said the outcome of the Supreme Court decision paved the way for consumers to fight junk e-mail at the state level in the absence of federal anti-spam laws.
"We're very happy that the California law was upheld," said John Mozena, vice president of the Coalition Against Unsolicited Commercial E-mail, a consumer advocacy group working to promote legislation that bans spam. "There is no legitimate reason for a legitimate advertiser to be forging contact information and hiding their identity and doing all the things that the California law prohibits."
The California case stems from a 1999 filing in which a state resident, Mark Ferguson, sued two Palo Alto, Calif.-based businesses. Ferguson alleged that Friendfinders and Conru Interactive sent him and others unsolicited e-mail advertisements that were deceptive, misleading and in violation of the state's law.
In June 2000, a San Francisco Superior Court judge ruled that California's anti-spam law is unconstitutional and violates the commerce clause of the U.S. Constitution by placing inconsistent restrictions on interstate use of the Internet. Wednesday's appeals court ruling reversed that decision; the case now will return to the lower court.
Wednesday's ruling has "a long-term impact," said Timothy Walton, an Internet attorney for Pierce & Shearer, which represents Ferguson. "The fear of potentially expensive lawsuits will encourage those who market by e-mail to comply with California's law. If everybody complies with California's law, then it would be possible to filter unsolicited e-mail messages to your trash if you wanted to without having to open them."
Ira Rothken, the attorney for the defendants, could not be immediately reached for comment.
BILL NUMBER: SB 186 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 11, 2003
PASSED THE ASSEMBLY SEPTEMBER 8, 2003
AMENDED IN ASSEMBLY SEPTEMBER 5, 2003
AMENDED IN ASSEMBLY AUGUST 25, 2003
AMENDED IN ASSEMBLY AUGUST 18, 2003
AMENDED IN ASSEMBLY JULY 10, 2003
AMENDED IN ASSEMBLY JULY 9, 2003
AMENDED IN ASSEMBLY JUNE 26, 2003
AMENDED IN SENATE MAY 22, 2003
AMENDED IN SENATE MAY 6, 2003
AMENDED IN SENATE MARCH 17, 2003
INTRODUCED BY Senator Murray
(Principal coauthor: Assembly Member Correa)
(Coauthors: Assembly Members Bermudez, Maldonado, and Simitian)
FEBRUARY 12, 2003
An act to amend Section 17538.45 of, to add Article 1.8
(commencing with Section 17529) to Chapter 1 of Part 3 of Division 7
of, and to repeal Section 17538.4 of, the Business and Professions
Code, relating to privacy.
LEGISLATIVE COUNSEL'S DIGEST
SB 186, Murray. Privacy: unsolicited commercial e-mail
advertising.
Existing law prohibits a person or entity conducting business in
the state from e-mailing or causing to be e-mailed documents
consisting of unsolicited advertising material, as specified, unless
that person or entity establishes a toll-free telephone number or
valid sender operated return e-mail address that a recipient may
contact to notify the sender not to e-mail any further unsolicited
documents. Existing law requires that notification of the toll-free
telephone number, and a valid address that a recipient may write to,
be included on these unsolicited e-mailed documents, and prohibits
the e-mailing of these unsolicited advertising documents to a person
who has requested not to receive them. Existing law requires certain
unsolicited e-mail advertisements to contain a heading of "ADV:" or
"ADV:ADLT." A violation of the provisions governing advertising is a
misdemeanor.
This bill would delete these provisions. The bill would instead
prohibit a person or entity located in California from initiating or
advertising in unsolicited commercial e-mail advertisements. The
bill would prohibit a person or entity not located in California from
initiating or advertising in unsolicited commercial e-mail
advertisements sent to a California e-mail address. The bill would
also prohibit a person or entity from collecting e-mail addresses or
registering multiple e-mail addresses for the purpose of initiating
or advertising in an unsolicited commercial e-mail advertisement from
California or to a California e-mail address. The bill would
prohibit a person or entity from using a commercial e-mail
advertisement containing certain falsified, misrepresented, obscured,
or misleading information.
This bill would authorize the recipient of a commercial e-mail
advertisement transmitted in violation of these prohibitions, the
electronic mail service provider, or the Attorney General to bring an
action to recover actual damages and would authorize these parties
to recover liquidated damages of $1,000 per transmitted message up to
$1,000,000 per incident, as defined, subject to reduction by a court
for specified reasons. The bill would provide for an award of
reasonable attorney's fees and costs to a prevailing plaintiff. The
bill would provide that a cause of action in existence prior to its
enactment would be governed by the law in effect at the time it
arose. The bill would enact other related provisions.
Existing law prohibits the registered user of an e-mail service
provider, or any individual, corporation, or other entity, from using
or causing to be used the provider's equipment located in this state
in violation of the provider's policies with regard to unsolicited
e-mail advertisements. Existing law authorizes an e-mail service
provider whose policy is violated to bring a civil action to recover
specified damages.
This bill would prohibit an e-mail service provider from bringing
an action under both this provision and other provisions being added
by the bill for the same unsolicited e-mail advertisement.
This bill would provide that if any part of these provisions or
their applications is deemed invalid, the invalidity would not affect
other provisions.
Because a violation of the bill would be a crime, it would impose
a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Article 1.8 (commencing with Section 17529) is added to
Chapter 1 of Part 3 of Division 7 of the Business and Professions
Code, to read:
Article 1.8. Restrictions On Unsolicited Commercial E-mail
Advertisers
17529. The Legislature hereby finds and declares all of the
following:
(a) Roughly 40 percent of all e-mail traffic in the United States
is comprised of unsolicited commercial e-mail advertisements
(hereafter spam) and industry experts predict that by the end of 2003
half of all e-mail traffic will be comprised of spam.
(b) The increase in spam is not only an annoyance but is also an
increasing drain on corporate budgets and possibly a threat to the
continued usefulness of the most successful tool of the computer age.
(c) Complaints from irate business and home-computer users
regarding spam have skyrocketed, and polls have reported that 74
percent of respondents favor making mass spamming illegal and only 12
percent are opposed, and that 80 percent of respondents consider
spam very annoying.
(d) According to Ferris Research Inc., a San Francisco consulting
group, spam will cost United States organizations more than ten
billion dollars ($10,000,000,000) this year, including lost
productivity and the additional equipment, software, and manpower
needed to combat the problem. California is 12 percent of the United
States population with an emphasis on technology business, and it is
therefore estimated that spam costs California organizations well
over 1.2 billion dollars ($1,200,000,000).
(e) Like junk faxes, spam imposes a cost on users, using up
valuable storage space in e-mail inboxes, as well as costly computer
band width, and on networks and the computer servers that power them,
and discourages people from using e-mail.
(f) Spam filters have not proven effective.
(g) Like traditional paper "junk" mail, spam can be annoying and
waste time, but it also causes many additional problems because it is
easy and inexpensive to create, but difficult and costly to
eliminate.
(h) The "cost shifting" from deceptive spammers to Internet
business and e-mail users has been likened to sending junk mail with
postage due or making telemarketing calls to someone's pay-per-minute
cellular phone.
(i) Many spammers have become so adept at masking their tracks
that they are rarely found, and are so technologically sophisticated
that they can adjust their systems to counter special filters and
other barriers against spam and can even electronically commandeer
unprotected computers, turning them into spam-launching weapons of
mass production.
(j) There is a need to regulate the advertisers who use spam, as
well as the actual spammers, because the actual spammers can be
difficult to track down due to some return addresses that show up on
the display as "unknown" and many others being obvious fakes and they
are often located offshore.
(k) The true beneficiaries of spam are the advertisers who benefit
from the marketing derived from the advertisements.
(l) In addition, spam is responsible for virus proliferation that
can cause tremendous damage both to individual computers and to
business systems.
(m) Because of the above problems, it is necessary that spam be
prohibited and that commercial advertising e-mails be regulated as
set forth in this article.
17529.1. For the purpose of this article, the following
definitions apply:
(a) "Advertiser" means a person or entity that advertises through
the use of commercial e-mail advertisements.
(b) "California electronic mail address" or "California e-mail
address" means any of the following:
(1) An e-mail address furnished by an electronic mail service
provider that sends bills for furnishing and maintaining that e-mail
address to a mailing address in this state.
(2) An e-mail address ordinarily accessed from a computer located
in this state.
(3) An e-mail address furnished to a resident of this state.
(c) "Commercial e-mail advertisement" means any electronic mail
message initiated for the purpose of advertising or promoting the
lease, sale, rental, gift offer, or other disposition of any
property, goods, services, or extension of credit.
(d) "Direct consent" means that the recipient has expressly
consented to receive e-mail advertisements from the advertiser,
either in response to a clear and conspicuous request for the consent
or at the recipient's own initiative.
(e) "Domain name" means any alphanumeric designation that is
registered with or assigned by any domain name registrar as part of
an electronic address on the Internet.
(f) "Electronic mail" or "e-mail" means an electronic message that
is sent to an e-mail address and transmitted between two or more
telecommunications devices, computers, or electronic devices capable
of receiving electronic messages, whether or not the message is
converted to hard copy format after receipt or is viewed upon
transmission or stored for later retrieval. "Electronic mail" or
"e-mail" includes electronic messages that are transmitted through a
local, regional, or global computer network.
(g) "Electronic mail address" or "e-mail address" means a
destination, commonly expressed as a string of characters, to which
electronic mail can be sent or delivered. An "electronic mail
address" or "e-mail address" consists of a user name or mailbox and a
reference to an Internet domain.
(h) "Electronic mail service provider" means any person, including
an Internet service provider, that is an intermediary in sending or
receiving electronic mail or that provides to end users of the
electronic mail service the ability to send or receive electronic
mail.
(i) "Initiate" means to transmit or cause to be transmitted a
commercial e-mail advertisement or assist in the transmission of a
commercial e-mail advertisement by providing electronic mail
addresses where the advertisement may be sent, but does not include
the routine transmission of the advertisement through the network or
system of a telecommunications utility or an electronic mail service
provider through its network or system.
(j) "Incident" means a single transmission or delivery to a single
recipient or to multiple recipients of unsolicited commercial e-mail
advertisement containing substantially similar content.
(k) "Internet" has the meaning set forth in paragraph (6) of
subdivision (e) of Section 17538.
(l) "Preexisting or current business relationship," as used in
connection with the sending of a commercial e-mail advertisement,
means that the recipient has made an inquiry and has provided his or
her e-mail address, or has made an application, purchase, or
transaction, with or without consideration, regarding products or
services offered by the advertiser.
Commercial e-mail advertisements sent pursuant to the exemption
provided for a preexisting or current business relationship shall
provide the recipient of the commercial e-mail advertisement with the
ability to "opt-out" from receiving further commercial e-mail
advertisements by calling a toll-free telephone number or by sending
an "unsubscribe" e-mail to the advertiser offering the products or
services in the commercial e-mail advertisement. This opt-out
provision does not apply to recipients who are receiving free e-mail
service with regard to commercial e-mail advertisements sent by the
provider of the e-mail service.
(m) "Recipient" means the addressee of an unsolicited commercial
e-mail advertisement. If an addressee of an unsolicited commercial
e-mail advertisement has one or more e-mail addresses to which an
unsolicited commercial e-mail advertisement is sent, the addressee
shall be deemed to be a separate recipient for each e-mail address to
which the e-mail advertisement is sent.
(n) "Routine transmission" means the transmission, routing,
relaying, handling, or storing of an electronic mail message through
an automatic technical process. "Routine transmission" shall not
include the sending, or the knowing participation in the sending, of
unsolicited commercial e-mail advertisements.
(o) "Unsolicited commercial e-mail advertisement" means a
commercial e-mail advertisement sent to a recipient who meets both of
the following criteria:
(1) The recipient has not provided direct consent to receive
advertisements from the advertiser.
(2) The recipient does not have a preexisting or current business
relationship, as defined in subdivision (l), with the advertiser
promoting the lease, sale, rental, gift offer, or other disposition
of any property, goods, services, or extension of credit.
17529.2. Notwithstanding any other provision of law, a person or
entity may not do any of the following:
(a) Initiate or advertise in an unsolicited commercial e-mail
advertisement from California or advertise in an unsolicited
commercial e-mail advertisement sent from California.
(b) Initiate or advertise in an unsolicited commercial e-mail
advertisement to a California electronic mail address, or advertise
in an unsolicited commercial e-mail advertisement sent to a
California electronic mail address.
(c) The provisions of this section are severable. If any
provision of this section or its application is held invalid, that
invalidity shall not affect any other provision or application that
can be given effect without the invalid provision or application.
17529.3. Nothing in this article shall be construed to limit or
restrict the adoption, implementation, or enforcement by a provider
of Internet access service of a policy of declining to transmit,
receive, route, relay, handle, or store certain types of electronic
mail messages.
17529.4. (a) It is unlawful for any person or entity to collect
electronic mail addresses posted on the Internet if the purpose of
the collection is for the electronic mail addresses to be used to do
either of the following:
(1) Initiate or advertise in an unsolicited commercial e-mail
advertisement from California, or advertise in an unsolicited
commercial e-mail advertisement sent from California.
(2) Initiate or advertise in an unsolicited commercial e-mail
advertisement to a California electronic mail address, or advertise
in an unsolicited commercial e-mail advertisement sent to California
electronic mail address.
(b) It is unlawful for any person or entity to use an electronic
mail address obtained by using automated means based on a combination
of names, letters, or numbers to do either of the following:
(1) Initiate or advertise in an unsolicited commercial e-mail
advertisement from California, or advertise in an unsolicited
commercial e-mail advertisement sent from California.
(2) Initiate or advertise in an unsolicited commercial e-mail
advertisement to a California electronic mail address, or advertise
in an unsolicited commercial e-mail advertisement sent to a
California electronic mail address.
(c) It is unlawful for any person to use scripts or other
automated means to register for multiple electronic mail accounts
from which to do, or to enable another person to do, either of the
following:
(1) Initiate or advertise in an unsolicited commercial e-mail
advertisement from California, or advertise in an unsolicited
commercial e-mail advertisement sent from California.
(2) Initiate or advertise in an unsolicited commercial e-mail
advertisement to a California electronic mail address, or advertise
in an unsolicited commercial e-mail advertisement sent to a
California electronic mail address.
17529.5. It is unlawful for any person or entity to advertise
using a commercial e-mail advertisement either sent from California
or sent to a California electronic mail address under any of the
following circumstances:
(a) The commercial e-mail advertisement contains or is accompanied
by a third party's domain name without the permission of the third
party.
(b) The commercial e-mail advertisement contains or is accompanied
by falsified, misrepresented, obscured, or forged header
information. This paragraph does not apply to truthful information
used by a third party who has been lawfully authorized by the
advertiser to use that information.
(c) The commercial 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.
17529.8. (a) (1) In addition to any other remedies provided by
this article or by any other provisions of law, a recipient of an
unsolicited commercial e-mail advertisement transmitted in violation
of this article, an electronic mail service provider, or the Attorney
General may bring an action against an entity that violates any
provision of this article to recover either or both of the following:
(A) Actual damages.
(B) Liquidated damages of one thousand dollars ($1,000) for each
unsolicited commercial e-mail advertisement transmitted in violation
of Section 17529.2, up to one million dollars ($1,000,000) per
incident.
(2) The recipient, an electronic mail service provider, or the
Attorney General, if the prevailing plaintiff, may also recover
reasonable attorney's fees and costs.
(3) However, there shall not be a cause of action against an
electronic mail service provider that is only involved in the routine
transmission of the unsolicited commercial e-mail advertisement over
its computer network.
(b) If the court finds that the defendant established and
implemented, with due care, practices and procedures reasonably
designed to effectively prevent unsolicited commercial e-mail
advertisements that are in violation of this article, the court shall
reduce the liquidated damages recoverable under subdivision (a) 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.
17529.9. The provisions of this article are severable. If any
provision of this article or its application is held invalid, that
invalidity shall not affect any other provision or application that
can be given effect without the invalid provision or application.
SEC. 2. Section 17538.4 of the Business and Professions Code is
repealed.
SEC. 3. Section 17538.45 of the Business and Professions Code is
amended to read:
17538.45. (a) For purposes of this section, the following words
have the following meanings:
(1) "Electronic mail advertisement" means any electronic mail
message, the principal purpose of which is to promote, directly or
indirectly, the sale or other distribution of goods or services to
the recipient.
(2) "Unsolicited electronic mail advertisement" means any
electronic mail advertisement that meets both of the following
requirements:
(A) It is addressed to a recipient with whom the initiator does
not have an existing business or personal relationship.
(B) It is not sent at the request of or with the express consent
of the recipient.
(3) "Electronic mail service provider" means any business or
organization qualified to do business in California that provides
registered users the ability to send or receive electronic mail
through equipment located in this state and that is an intermediary
in sending or receiving electronic mail.
(4) "Initiation" of an unsolicited electronic mail advertisement
refers to the action by the initial sender of the electronic mail
advertisement. It does not refer to the actions of any intervening
electronic mail service provider that may handle or retransmit the
electronic message.
(5) "Registered user" means any individual, corporation, or other
entity that maintains an electronic mail address with an electronic
mail service provider.
(b) No registered user of an electronic mail service provider
shall use or cause to be used that electronic mail service provider's
equipment located in this state in violation of that electronic mail
service provider's policy prohibiting or restricting the use of its
service or equipment for the initiation of unsolicited electronic
mail advertisements.
(c) No individual, corporation, or other entity shall use or cause
to be used, by initiating an unsolicited electronic mail
advertisement, an electronic mail service provider's equipment
located in this state in violation of that electronic mail service
provider's policy prohibiting or restricting the use of its equipment
to deliver unsolicited electronic mail advertisements to its
registered users.
(d) An electronic mail service provider shall not be required to
create a policy prohibiting or restricting the use of its equipment
for the initiation or delivery of unsolicited electronic mail
advertisements.
(e) Nothing in this section shall be construed to limit or
restrict the rights of an electronic mail service provider under
Section 230(c)(1) of Title 47 of the United States Code, or any
decision of an electronic mail service provider to permit or to
restrict access to or use of its system, or any exercise of its
editorial function.
(f) (1) In addition to any other action available under law, any
electronic mail service provider whose policy on unsolicited
electronic mail advertisements is violated as provided in this
section may bring a civil action to recover the actual monetary loss
suffered by that provider by reason of that violation, or liquidated
damages of fifty dollars ($50) for each electronic mail message
initiated or delivered in violation of this section, up to a maximum
of twenty-five thousand dollars ($25,000) per day, whichever amount
is greater.
(2) In any action brought pursuant to paragraph (1), the court may
award reasonable attorney's fees to a prevailing party.
(3) (A) In any action brought pursuant to paragraph (1), the
electronic mail service provider shall be required to establish as an
element of its cause of action that prior to the alleged violation,
the defendant had actual notice of both of the following:
(i) The electronic mail service provider's policy on unsolicited
electronic mail advertising.
(ii) The fact that the defendant's unsolicited electronic mail
advertisements would use or cause to be used the electronic mail
service provider's equipment located in this state.
(B) In this regard, the Legislature finds that with rapid advances
in Internet technology, and electronic mail technology in
particular, Internet service providers are already experimenting with
embedding policy statements directly into the software running on
the computers used to provide electronic mail services in a manner
that displays the policy statements every time an electronic mail
delivery is requested. While the state of the technology does not
support such a finding at present, the Legislature believes that, in
a given case at some future date, a showing that notice was supplied
via electronic means between the sending and receiving computers
could be held to constitute actual notice to the sender for purposes
of this paragraph.
(4) (A) An electronic mail service provider who has brought an
action against a party for a violation subject to Section 17529.8
shall not bring an action against that party under this section for
the same unsolicited commercial electronic mail advertisement.
(B) An electronic mail service provider who has brought an action
against a party for a violation of this section shall not bring an
action against that party under Section 17529.8 for the same
unsolicited commercial electronic mail advertisement.
SEC. 4. A cause of action that is in existence before the
effective date of this act shall not be affected by this act, but
shall instead be governed by the law that was in effect at the time
the cause of action arose.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
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