BILL NUMBER: AB 277 CHAPTERED 09/04/03 CHAPTER 277 FILED WITH SECRETARY OF STATE SEPTEMBER 4, 2003 APPROVED BY GOVERNOR SEPTEMBER 3, 2003 PASSED THE ASSEMBLY AUGUST 21, 2003 PASSED THE SENATE JULY 24, 2003 AMENDED IN SENATE JULY 17, 2003 AMENDED IN SENATE JULY 14, 2003 AMENDED IN SENATE JULY 2, 2003 AMENDED IN SENATE JUNE 4, 2003 AMENDED IN ASSEMBLY APRIL 24, 2003 AMENDED IN ASSEMBLY APRIL 7, 2003 INTRODUCED BY Assembly Member Dutra (Coauthors: Assembly Members Chan, Cohn, Frommer, Hancock, Koretz, Levine, Longville, Mullin, Samuelian, and Yee) (Coauthors: Senators Johnson, Perata, Scott, Soto, and Vasconcellos) FEBRUARY 5, 2003 An act to amend Section 17526 of, and to add Section 17528.5 to, the Business and Professions Code, and to amend Section 8040 of, and to add Article 3 (commencing with Section 18320) to Chapter 4 of Division 18 of, the Elections Code, relating to fraudulent practices. LEGISLATIVE COUNSEL'S DIGEST AB 277, Dutra. Commercial and political cyberfraud. Existing law makes it unlawful for a person, with bad faith intent, to register, traffic in, or use a domain name that is identical or confusingly similar to the personal name of another living person or deceased personality, without regard to the goods and services of the parties. It permits a court to consider various factors in determining the existence of bad-faith intent, and permits a complaining party to seek an injunction against the alleged infringement. This bill would permit a court to consider the intent of a person alleged to be in violation of these provisions to mislead, deceive, or defraud voters. It would, in addition, authorize a court to order the transfer of a domain name as part of the relief awarded. Former provisions of law in effect until January 1, 2003, made it unlawful for a person, with intent to mislead, deceive, or defraud, to commit an act of political cyberfraud. It defined "political cyberfraud" for this purpose, as an act concerning a political Web site of a statewide ballot measure, as defined, that is committed with intent to deny a person access to a political Web site, deny a person the opportunity to register a domain name for a political Web site, or cause a person reasonably to believe that a political Web site has been posted by a person other than the person who posted the Web site. These former provisions of law made a violation thereof punishable by a fine not to exceed $1,000 for each day the violation occurred and authorized a court to order the transfer of a domain name as part of the relief awarded. This bill would reenact these former provisions of law, other than previously applicable fines, and would extend their application to a Web site that a reasonable person would believe represents the views of a proponent or opponent of a ballot measure. Existing law specifies the information that may be included on a declaration of candidacy, such as the name, address, and telephone number of the candidate, among other things. This bill would revise the declaration of candidacy form to permit inclusion of a candidate's Web site address. The bill would provide that its provisions are severable. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. The Legislature finds and declares all of the following: (a) The World Wide Web is a unique arena for the free and open exchange of ideas. (b) "Political cyberfraud" stifles that open exchange, thus undermining the essential element of our democracy. (c) Political cyberfraud has the effect of denying, or interfering with access to information that would allow a person to make a knowledgeable electoral decision. It misleads, deceives, or defrauds voters or candidates, or both. It is the equivalent of stealing campaign literature out of a voter's mailbox and it sows confusion in the minds of voters regarding information presented. (d) Political cyberfraud violates principles of free speech by denying unfettered access to the free and open exchange of ideas. Therefore, it is the intent of the Legislature to protect that free and open exchange of ideas at the heart of our electoral system by prohibiting the act of political cyberfraud. (e) "Cyber piracy" involves, among other things, the misuse of a domain name with a bad-faith intent to profit from a legal name by using a domain name that is identical or confusingly similar to the legal name and selling it to the owner of the legal name. Cyber piracy infringes upon the legal rights of persons protected by law for whom a financial remedy for that infringement should be provided equivalent to that for political cyberfraud infringement provided by this act. SEC. 2. Section 17526 of the Business and Professions Code is amended to read: 17526. In determining whether there is a bad faith intent pursuant to Section 17525, a court may consider factors, including, but not limited to, the following: (a) The trademark or other intellectual property rights of the person alleged to be in violation of this article, if any, in the domain name. (b) The extent to which the domain name consists of the legal name of the person alleged to be in violation of this article or a name that is otherwise commonly used to identify that person. (c) The prior use, if any, by the person alleged to be in violation of this article of the domain name in connection with the bona fide offering of any goods or services. (d) The legitimate noncommercial or fair use of the person's or deceased personality's name in an Internet Web site accessible under the domain name by the person alleged to be in violation of this article. (e) The intent of a person alleged to be in violation of this article to divert consumers from the person's or deceased personality' s name online location to a site accessible under the domain name that could harm the goodwill represented by the person's or deceased personality's name either for commercial gain or with the intent to tarnish or disparage the person's or deceased personality's name by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site. (f) The offer by a person alleged to be in violation of this article to transfer, sell, or otherwise assign the domain name to the rightful owner or any third party for substantial consideration without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services. (g) The intentional provision by the person alleged to be in violation of this article of material and misleading false contact information when applying for the registration of the domain name. (h) The registration or acquisition by the person alleged to be in violation of this article of multiple domain names that are identical or confusingly similar to names of other living persons or deceased personalities. (i) Whether the person alleged to be in violation of this article sought or obtained consent from the rightful owner to register, traffic in, or use the domain name. (j) The intent of a person alleged to be in violation of this article to mislead, deceive, or defraud voters. SEC. 3. Section 17528.5 is added to the Business and Professions Code, to read: 17528.5. In addition to any other remedies available under law, a court may order the transfer of a domain name as part of the relief awarded for a violation of this article. SEC. 4. Section 8040 of the Elections Code is amended to read: 8040. (a) The declaration of candidacy by a candidate shall be substantially as follows: DECLARATION OF CANDIDACY I hereby declare myself a ____ Party candidate for nomination to the office of ____ District Number ____ to be voted for at the primary election to be held ____, 20__, and declare the following to be true: My name is ____________________________________________________. I want my name and occupational designation to appear on the ballot as follows: ________. Addresses: Residence ______________________________________________________ ______________________________________________________ Business ______________________________________________________ ______________________________________________________ Mailing ______________________________________________________ ______________________________________________________ Telephone numbers: Day _________ Evening ___________ Web site: ________________________ I meet the statutory and constitutional qualifications for this office (including, but not limited to, citizenship, residency, and party affiliation, if required). I am at present an incumbent of the following public office (if any) ____. If nominated, I will accept the nomination and not withdraw. ________________________________________ Signature of candidate State of California ) County of _________ ) ss. ) Subscribed and sworn to before me this ____ day of ____, 20__. _________________________________________ Notary Public (or other official) Examined and certified by me this ________ day of _______, 20__. _________________________________________ County Elections Official WARNING: Every person acting on behalf of a candidate is guilty of a misdemeanor who deliberately fails to file at the proper time and in the proper place any declaration of candidacy in his or her possession which is entitled to be filed under the provisions of the Elections Code Section 18202. (b) A candidate for a judicial office may not be required to state his or her residential address on the declaration of candidacy. However, in cases where the candidate does not state his or her residential address on the declaration of candidacy, the elections official shall verify whether his or her address is within the appropriate political subdivision and add the notation "verified" where appropriate. SEC. 5. Article 3 (commencing with Section 18320) is added to Chapter 4 of Division 18 of the Elections Code, to read: Article 3. Deceptive Online Activities 18320. (a) This act shall be known and may be cited as the "California Political Cyberfraud Abatement Act." (b) It is unlawful for a person, with intent to mislead, deceive, or defraud, to commit an act of political cyberfraud. (c) As used in this section: (1) "Political cyberfraud" means a knowing and willful act concerning a political Web site that is committed with the intent to deny a person access to a political Web site, deny a person the opportunity to register a domain name for a political Web site, or cause a person reasonably to believe that a political Web site has been posted by a person other than the person who posted the Web site, and would cause a reasonable person, after reading the Web site, to believe the site actually represents the views of the proponent or opponent of a ballot measure. Political cyberfraud includes, but is not limited to, any of the following acts: (A) Intentionally diverting or redirecting access to a political Web site to another person's Web site by the use of a similar domain name, meta-tags, or other electronic measures. (B) Intentionally preventing or denying exit from a political Web site by the use of frames, hyperlinks, mousetrapping, popup screens, or other electronic measures. (C) Registering a domain name that is similar to another domain name for a political Web site. (D) Intentionally preventing the use of a domain name for a political Web site by registering and holding the domain name or by reselling it to another with the intent of preventing its use, or both. (2) "Domain name" means any alphanumeric designation that is registered with or assigned by any domain name registrar, domain name registry, or other domain registration authority as part of an electronic address on the Internet. (3) "Political Web site" means a Web site that urges or appears to urge the support or opposition of a ballot measure. 18321. This article does not apply to a domain name registrar, registry, or registration authority. 18322. In addition to any other remedies available under law, a court may order the transfer of a domain name as part of the relief awarded for a violation of this article. 18323. Jurisdiction for actions brought pursuant to this article shall be in accordance with Section 410.10 of the Code of Civil Procedure. SEC. 6. The provisions of this bill are severable. If any provision of this bill or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.