BILL ANALYSIS
AB 1629
Page 1
Date of Hearing: March 31, 1998
ASSEMBLY COMMITTEE ON CONSUMER PROTECTION,
GOVERNMENTAL EFFICIENCY, AND ECONOMIC DEVELOPMENT
Susan Davis, Chair
AB 1629 (Miller) - As Amended: March 12, 1998
SUBJECT : Prohibits unsolicited electronic advertising under
specified conditions and protects Internet domain names
SUMMARY : Prohibits the unauthorized use of electronic mail
networks and provides for specified penalties. Specifically, this
bill :
1) Prohibits the practice of sending unsolicited advertising by
electronic mail, which commonly is known as "spamming", by
clarifying that electronic mail service providers control the
use of their services and equipment.
2) Allows for the recovery of civil damages against spammers,
either for actual monetary damages or $50 per spam, up to
$15,000 per day, whichever is greater, and the recovery of
reasonable attorney's fees.
3) Prohibits the unauthorized use of computer domain names by
adding domain name forgery to the list of computer crimes
punishable by a fine of up to $10,000 and/or imprisonment for
up to three years.
4) Defines various terms, including "unsolicited electronic mail
advertisement", "electronic mail service provider", and
"Internet domain name" for purposes of this bill.
EXISTING LAW :
1) Makes certain computer crimes, such as system hacking
(unauthorized access to and use of computer systems), sabotage
and willful contamination by releasing computer viruses, and
willful disruption of computer services, punishable as
misdemeanors, felonies, or alternate misdemeanors/felonies.
2) Is silent on domain name protection.
FISCAL EFFECT : No significant state costs.
COMMENTS :
1) Measure Intended to Stop Junk E-Mail and Name Forgery
According to the author's office, the measure is intended to
prevent spamming and domain name fraud. Domain names, such as
, can be considered the addresses of the paths
used to transmit e-mail via the Internet. The bill seeks to
stop spamming by (1) allowing electronic mail service providers
to sue spammers for damage they cause to electronic mail
AB 1629
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networks and (2) criminalizing unauthorized domain name use.
Supporters argue that Internet users face a daily onslaught of
unsolicited e-mail from Internet businesses advertising goods
and services. Known as spamming, the practice of sending mass
e-mails often imposes a significant
time burden on Internet users and often can slow down or disrupt
on-line service.
2) Magnitude of the Problem
As reported by America On Line (AOL), on average, about 30
percent of the estimated 30 million e-mail messages transmitted
on its network each day are unsolicited commercial e-mail.
Supporters of anti-spamming legislation argue that the high
volume of junk e-mail places a tremendous burden on electronic
mail service providers when they have to process and store such
high amounts of data. Spam opponents note that simply deleting
junk e-mail does not end the problem for consumers or
electronic mail service providers because there is no real cost
to sending mass e-mails. Rather, junk e-mail shifts the
majority of advertising costs from the advertiser because
individuals and their electronic mail service providers bear
the costs in lost time, damaged equipment, lost productivity,
and lost business opportunities.
3) Domain Name Forgery Considered to be Electronic Trespass
Spammers often use the domain names of others to disguise the
origin and content of their junk e-mail. For example, Company
X may send out a large bulk e-mail advertisement for its
services with a forged and falsified return address such as
or .
Currently, a semiformal domain name registry exists that offers
some level of protection to domain names. However, domain name
fraud is on the rise, and it can be considered akin to personal
name forgery or trademark infringement in that a protected
identity has been falsely used. Supporters of the bill argue
that prohibiting unauthorized domain name use will help stop
the theft of service and electronic trespass that spammers
commit.
4) Additional Anti-Spamming Legislation Introduced
AB 1676 (Bowen), which recently passed out of this Committee,
is also an anti-spamming bill. AB 1676 takes a different
approach to the junk e-mail problem by: (1) allowing consumers
the option of opting-out of spam distribution lists and (2)
making spamming an infraction punishable by a $500 fine for
each violation.
In addition, AB 2640 (Bowen), which is pending before the
Assembly Committee on Judiciary, also seeks to address the
domain name forgery issue by creating additional civil remedies
recoverable by electronic mail service providers for
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unauthorized domain name usage. Specifically, AB 2640
allows for recovery of actual damages suffered or an amount
determined as specified.
5) Will the Bill be Effective Against Out-of-State Spam ?
The question can be asked whether the bill will be effective
against spam that originates from outside of California's
borders. Specifically, it is not clear that senders of
out-of-state or offshore junk e-mail would be subject to the
provisions of this bill and whether the provisions could be
enforced outside of the state's jurisdiction.
AB 1629
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6) Opponents Challenge Constitutionality of the Bill
Opponents of the bill claim that the bill may be an
unconstitutional infringement on free speech and that any
government regulation of the Internet may have a dampening
effect on Internet commerce.
REGISTERED SUPPORT / OPPOSITION :
Support
Cheetah's of San Diego
DeJa Vu/Showgirls
ISP Consortium
Packet Clearing House
The Adult Entertainment Industry Education Fund
The California Adult Webmasters Association
The California Alliance for Consumer Protection
Your Adult Liberties and Erotic Rights are Threatened (A.L.E.R.T.)
Zocala
Opposition
None on file
Analysis prepared by : Sailaja Cherukuri / aconpro / (916)
319-2089