BILL NUMBER: SB 186 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 22, 2003
AMENDED IN SENATE MAY 6, 2003
AMENDED IN SENATE MARCH 17, 2003
INTRODUCED BY Senator Murray
FEBRUARY 12, 2003
An act to amend Section 17538.4 of, and to add Article 1.8
(commencing with Section 17529) to Chapter 1 of Part 3 of Division 7
of, the Business and Professions Code, relating to privacy.
LEGISLATIVE COUNSEL'S DIGEST
SB 186, as amended, Murray. Privacy: unsolicited 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 for the lease, sale,
rental, gift offer, or other disposition of any realty, goods,
services, or extension of credit 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 the recipient 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 any further unsolicited documents.
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 prohibit an advertiser located in California from
using unsolicited commercial e-mail advertisements. The bill would
prohibit an advertiser not located in California from using
unsolicited commercial e-mail advertisements sent to a California
e-mail address if the advertiser knows or should reasonably know that
it is a California e-mail address. The bill would provide that if
any part of these provisions or their application is held invalid,
the invalidity would not affect the other provisions.
This bill would authorize the recipient of a commercial e-mail
advertisement transmitted in violation of these prohibitions or the
Attorney General to bring an action to recover $1,000 per individual
violation. 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.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
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. For the purpose of this article, the following definitions
apply:
(a) "Advertiser" means a person or entity that advertises through
the use of unsolicited 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 a recipient's unambiguous
expression of permission to receive a commercial e-mail advertisement
of the type transmitted, where the recipient has clear and
conspicuous notice of the scope of the permission, including the
types of commercial e-mail advertisements and the advertisers or
types of advertisers included, at the time the recipient grants that
permission. "Direct consent" means that the recipient
has expressly consented to receive the message, 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 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.
(i)
(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" may include a user name or mailbox and a
reference to an Internet domain.
(h) "Internet" has the meaning set forth in paragraph (6) of
subdivision (e) of Section 17538.
(i) "Preexisting or current business relationship," as used in
connection with the sending of a commercial e-mail advertisement,
means either of the following:
(1) The recipient has purchased or leased property, goods, or
services from the sender and both of the following conditions are
met:
(A) The subject of the commercial e-mail advertisement concerns
that purchase or lease.
(B) The commercial e-mail advertisement is sent within 12 months
of the purchase or lease, or within any longer express warranty
period.
(2) The recipient has an ongoing contract with the sender and the
commercial e-mail advertisement directly concerns the ongoing
contract.
(1) That within the three-year period ending upon receipt of the
advertisement, the recipient has made an inquiry, application,
purchase, or transaction regarding products or services offered by
the sender.
(2) That the recipient has made an inquiry, application, purchase,
or transaction regarding products or services offered by the sender
and the sender maintains an electronic or written record of the
transaction.
(j) "Recipient" means the addressee of a commercial e-mail
advertisement. If an addressee of a commercial e-mail advertisement
has one or more e-mail addresses to which a commercial e-mail
advertisement is sent, the addressee shall be deemed to be a separate
recipient for each e-mail address to which the advertisement is
sent.
(k) "Unsolicited commercial e-mail advertisement" means a
commercial e-mail advertisement sent to a recipient who meets both of
the following criteria:
(1) Has The recipient has not
provided direct consent to receive the commercial e-mail
advertisement.
(2) Does The recipient does not have
a preexisting or current business relationship, as defined in
subdivision (j) (i) , with the
advertiser of the realty, goods, services, or extension of credit.
17529.1. (a) Notwithstanding any other provision of law, if an
advertiser is located in California, the advertiser shall not
advertise using an unsolicited commercial e-mail advertisement.
(b) Notwithstanding any other provision of law, an advertiser that
is not located in California shall not advertise using an
unsolicited commercial e-mail advertisement that is sent to a
California e-mail address if the advertiser knows or should
reasonably foresee that the e-mail address is a California e-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.
17529.2. (a) In addition to any other remedies provided by this
article or by other provisions of law, a recipient of an unsolicited
commercial e-mail advertisement transmitted in violation of Section
17529.1 may bring an action to recover one thousand dollars ($1,000)
for each individual violation of that section.
(b) In addition to any other remedies provided by this article or
by other provisions of law, the Attorney General may bring an action
against a person or entity in violation of Section 17529.1 to recover
one thousand dollars ($1,000) for each individual violation of that
section.
SEC. 2. Section 17538.4 of the Business and Professions Code is
amended to read:
17538.4. (a) A person or entity conducting business in this
state shall not electronically mail (e-mail) or cause to be e-mailed
documents containing unsolicited advertising material for the lease,
sale, rental, gift offer, or other disposition of any realty, goods,
services, or extension of credit unless that person or entity
establishes a toll-free telephone number or valid sender operated
return e-mail address that the recipient of the unsolicited documents
may call or e-mail to notify the sender not to e-mail any further
unsolicited documents.
(b) An unsolicited e-mailed document subject to this section
shall include a statement informing the recipient of the toll-free
telephone number that the recipient may call, or a valid return
address to which the recipient may write or e-mail, as the case may
be, notifying the sender not to e-mail the recipient any further
unsolicited documents to the e-mail address, or addresses, specified
by the recipient.
The statement shall be the first text in the body of the message
and shall be of the same size as the majority of the text of the
message.
(c) Upon notification by a recipient of his or her request not to
receive any further unsolicited e-mailed documents, a person or
entity conducting business in this state shall not e-mail or cause to
be e-mailed any unsolicited documents to that recipient.
(d) This section shall apply when the unsolicited e-mailed
documents are delivered to a California resident via an electronic
mail service provider's service or equipment located in this state.
For these purposes, "electronic mail service provider" means a
business or organization qualified to do business in this state that
provides individuals, corporations, or other entities 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.
(e) As used in this section, "unsolicited e-mailed documents"
means an e-mailed document or documents consisting of advertising
material for the lease, sale, rental, gift offer, or other
disposition of any realty, goods, services, or extension of credit
that meet both of the following requirements:
(1) The documents are addressed to a recipient with whom the
initiator does not have an existing business or personal
relationship.
(2) The documents are not sent at the request of, or with the
express consent of, the recipient.
(f) As used in this section, "e-mail" or "cause to be e-mailed"
does not include or refer to the transmission of any documents by a
telecommunications utility or Internet service provider to the extent
that the telecommunications utility or Internet service provider
merely carries that transmission over its network.
(g) In the case of e-mail that consists of unsolicited advertising
material for the lease, sale, rental, gift offer, or other
disposition of any realty, goods, services, or extension of credit,
the subject line of each and every message shall include "ADV:" as
the first four characters. If these messages contain information
that consists of unsolicited advertising material for the lease,
sale, rental, gift offer, or other disposition of any realty, goods,
services, or extension of credit that may only be viewed, purchased,
rented, leased, or held in possession by an individual 18 years of
age and older, the subject line of each and every message shall
include "ADV:ADLT" as the first eight characters.
(h) An employer who is the registered owner of more than one
e-mail address may notify the person or entity conducting business in
this state e-mailing or causing to be e-mailed documents consisting
of unsolicited advertising material for the lease, sale, rental, gift
offer, or other disposition of any realty, goods, services, or
extension of credit of the desire to cease e-mailing on behalf of all
of the employees who may use employer-provided and
employer-controlled e-mail addresses.
(i) This section shall not apply to an advertiser subject to
Article 1.8 (commencing with Section 17529) of this chapter.
(j) This section, or any part of this section, shall become
inoperative on and after the date that federal law is enacted that
prohibits or otherwise regulates the transmission of unsolicited
advertising by electronic mail (e-mail).
SEC. 3. 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. 4. 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.