BILL ANALYSIS
SENATE RULES COMMITTEE AB 1629
Office of Senate Floor Analyses
1020 N Street, Suite 524
(916) 445-6614 Fax: (916) 327-4478
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THIRD READING
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Bill No: AB 1629
Author: Miller (R) and Cunneen (R), et al
Amended: 7/28/98 in Senate
Vote: 21
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SENATE BUSINESS & PROFESSIONS COMMITTEE : 5-0, 6/22/98
AYES: Johannessen, Greene, Kelley, O'Connell, Polanco
NOT VOTING: Ayala, Rosenthal
SENATE APPROPRIATIONS COMMITTEE : 12-0, 8/11/98
AYES: Johnston, Alpert, Burton, Calderon, Dills, Hughes,
Karnette, Kelley, Leslie, McPherson, Mountjoy,
Vasconcellos
NOT VOTING: Johnson
ASSEMBLY FLOOR : 70-3, 5/18/98 - See last page for vote
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SUBJECT : Electronic mail
SOURCE : Author
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DIGEST : This bill prohibits unauthorized electronic mail
advertisements and the unauthorized use of Internet domain
names.
ANALYSIS : Existing law:
1.Regulates advertising and provides that any violation of
those provisions is a misdemeanor, as well as subject to
injunctive relief and civil penalties.
2.As part of that advertising law, prohibits a person
conducting business in this state from faxing unsolicited
advertising material, unless certain conditions are
satisfied, including providing a toll-free telephone
number recipients may call to stop such unsolicited faxes
("opt out"), providing notice thereof in the fax, and
makes a failure to comply with a recipient's request to
stop unsolicited faxes an infraction with up to a $500
fine.
3.Makes unauthorized access and use ("hacking"),
modification, or damage of computer data, a computer, a
computer system or a computer network a crime subject to
misdemeanor, felony, or alternate misdemeanor/felony
penalties, and by civil penalties by a victim.
4.Is silent on Internet domain name (e-mail user name
addresses) protection.
This bill:
1.Prohibits a registered user of an electronic mail service
provider (provider), as defined, from using or causing to
be used the provider's equipment in violation of the
provider's published policy prohibiting or restricting
the use of its equipment for the initiation of
unsolicited electronic mail (e-mail).
2.Prohibits any individual, corporation, or other entity
from using or causing to be used, by initiating an
unsolicited e-mail advertisement (spam), a provider's
equipment in violation of the provider's published policy
prohibiting or restricting the use of its equipment to
deliver unsolicited e-mail to the provider's registered
users.
3.Makes violations of the above two prohibitions a crime
(misdemeanor) by adding them to the advertising
regulatory provisions of law, violations of which are
misdemeanors.
4.Authorizes any provider whose published policy is
violated as prohibited by the bill to bring, in addition
to any other available legal action, a civil action to
recover actual money damages or liquidated damages of
fifty dollars ($50) per each unsolicited e-mail, up to a
maximum of $25,000 per day, whichever amount is greater,
and the awarding by the court of reasonable attorney's
fees (to the prevailing party).
5.In such civil action, requires the provider to establish
that its policy regarding unsolicited e-mail
advertisements had been published for at least 30 days
preceding the alleged violation of that policy.
6.Specifies that a provider is not required to create
policy prohibiting or restricting unsolicited e-mail
advertisements.
7.Provides that it does not limit or restrict the rights of
an e-mail service provider under a specified provision of
federal law, or any decision of a provider to permit or
restrict access or use of its system or its editorial
function.
8.Makes it a crime to knowingly and without permission use
the Internet name of another in connection with sending
an e-mail message, and thereby damage or cause damage to
a computer system or network domain, by adding that
prohibition to the list of computer crimes punishable as
an infraction for the first offense ($250 fine maximum),
or a misdemeanor ($5000 fine maximum and/or one year in a
county jail) for a second or subsequent violation.
9.Defines various terms, including "unsolicited electronic
mail advertisement," "electronic mail service provider,"
"registered user", and "Internet domain name."
Comments
This bill is sponsored by its author based on information
provided by a constituent who had his business damaged by
being inundated with unsolicited e-mail advertisements.
According to the author's office, this bill is intended to
prevent spamming and Internet domain name forgery.
Internet domain names, such as "senate.ca.gov.", are the
name addresses of the computer paths used to transmit and
receive e-mail via the Internet. This bill seeks to stop
spamming by (1) allowing electronic mail service providers
(also known as Internet Service Providers or ISP's) to sue
spammers for damage they cause to their electronic mail
networks, and (2) criminalizing unauthorized domain name
use.
Background
According to the author, advertisers using e-mail address
lists and specialized computer software are able to
transmit hundreds of thousands, even millions of
unsolicited e-mail ads at virtually no cost to themselves,
but instead shift the costs to the networks that carry the
e-mail and the recipients. Such mass mailings impose
enormous costs on the providers whose equipment and
services are used, and can be a costly and time consuming
nuisance for recipients who are a captive audience.
Spammers often use the domain names of others to disguise
the origin and content of their junk e-mail, which forgery
can be extremely damaging to businesses whose domain names
are forged as the originating or return e-mail address of
the spammer.
According to the Assembly Judiciary Committee analysis, a
recent report by America OnLine (AOL) noted that on average
about 30% of the estimated 30 million e-mail messages
transmitted via its network each day are unsolicited
commercial e-mail.
According to the author's office, this bill recognizes the
existing rights of ISP's to prevent the abuse of their
equipment caused by spam. The author's office claims that
courts around the country have recognized that ISP's have a
cognizable property interest in their equipment and
service. They have also held that third party advertisers
who use their property without authorization to deliver
unsolicited ads are liable for trespass. However, the
existing legal remedies for ISP's to control the use of
their network are inadequate because it is virtually
impossible for them to calculate their actual losses or
damages from mass-distributed unsolicited e-mail ads. In
contrast, the remedy specified for providers by this bill
would provide for specific monetary penalties for spamming.
The author's office stresses that the bill does not require
an ISP to restrict the use of its equipment for the
transmission of unsolicited e-mail ads, but rather leaves
the decision up to the ISP's to specify in their contracts
with subscribers to their service what the terms of such
use will be and what actions are contractually prohibited.
Related Legislation
AB 1676 (Bowen), in Senate Appropriations Committee, is
another anti-spamming bill this Session. That bill takes a
different approach to the problem of junk e-mail - being
modeled after the existing junk fax law. It allows a
consumer recipient to "opt-out" of receiving spam if they
contact the spammer and request it, requires spammers to
provide a toll-free telephone number or valid e-mail return
address, requires the use of specified acronyms in the
subject line of advertisements to indicate content, and
makes spamming in violation of its requirements an
infraction punishable by a $250 fine for each violation.
AB 2460 (Bowen), currently in Assembly policy committee, is
another anti-spamming bill that would create additional
civil remedies recoverable by ISP's for unauthorized domain
name usage - allowing recovery of actual damages or an
amount determined as specified.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 1998-99 1999-2000
2000-01 Fund
Misdemeanor Unknown increased, mandated,
non- Local
reimbursable costs
for county jail and
probation
Courts Probably minor, if any,
increased costs Special*
*Trial Court Trust Fund
SUPPORT : (Verified 8/13/98)
Consumer Federation of California
Coalition Against Unsolicited Commercial E-Mail
California Internet Industry Alliance
California District Attorneys Association
Compuserve, Microsoft, Netcom and Netscape
Concentric
International Business Lists
Zocalo
Packet Clearing House
ISP Consortium
San Bernadino County Sheriff
OPPOSITION : (Verified 8/13/98)
Matt Kuzins (direct mail fundraising consultant)
American Civil Liberties Union
Direct Marketing Association
ARGUMENTS IN SUPPORT : Supporters of the bill argue that
Internet users face a daily onslaught of unsolicited
commercial e-mail from businesses advertising various goods
and services. They argue that this practice of sending
mass, unsolicited commercial ads via Internet e-mail
imposes a significant time burden on the Internet users who
receive such e-mail who must read and or clear it off their
computers, and often can slow down or completely disrupt
the use of a provider network preventing its use by any of
the other registered, user subscribers. The supporters
believe that the bill will provide ISP's with an effective
private civil remedy to stop spammers and will extend the
criminal sanctions against unlawful computer use to include
the forgery of Internet domain names as another deterrent.
The ISP Consortium, states that it is the world's largest
industry association of Internet Service Providers. They
support this bill, stating that it offers Internet users
sufficient protection from unwelcome and intrusive
commercial spam.
The Coalition Against Unsolicited Commercial E-mail
(CAUCE), stating it is the Internet's oldest and largest
anti-junk-e-mail lobbying organization with nearly 10,000
members nationwide, also supports this bill. CAUCE states
that polls show that the large majority of Internet users
are in favor of legal protection. According to CAUCE, it
is vital that there be some protection against commercial
interests who would drown personal, political, artistic and
religious speech in the relentless blare of advertising.
International Business Lists (IBL), a for-profit venture
which conducts e-mail advertising, also strongly supports
this bill. IBL utilizes only "opt-in" methods, meaning
that they send messages only to users that give prior
permission. IBL states that spam hinders legitimate
Internet advertising companies, which create new jobs, new
products, and new technologies. IBL believes that
restricting spam fosters the growth of electronic commerce,
preserving e-mail for legitimate and valuable
communication.
The Packet Clearing House (PCH), which is made up of 24 of
the largest California ISP's, representing nearly 2 million
California Internet users, also supports this bill. PCH
believes that the bill is "the only effective anti-spam
measure under consideration." PCH states that the bill
will "protect our networks from the theft of service and
electronic trespass which are the modus operandi of
spammers, and to protect our customers from unwelcome
touting of pyramid schemes, pornography, and illegal
gambling."
Zocalo, an ISP with over 100,000 customers in California,
also supports the bill. Zocalo states that "the theft of
resources, network bandwidth, and computer time which
spammers perpetrate both slows down and increases the
monthly cost of Internet access not only for our
customers, but for everyone on the Internet."
ARGUMENTS IN OPPOSITION : The bill is opposed by Matt
Kuzins, a fundraising consultant, who argues that the bill
would unfairly restrict charities from using the e-mail to
raise funds to support many essential community service
programs. He argues that the bill is a meat-ax approach to
the spamming problem and that what is needed is a more
creative approach that distinguishes between legitimate
charitable and other advertising, and that which is a
willful, intentional abuse of e-mail.
According to the ACLU, "Commercial speech is entitled to
First Amendment protections. Given the Supreme Court
decision in Reno v ACLU , on-line messages should receive
the same First Amendment protection given traditional print
media, which includes commercial mailings. This bill, as
drafted, unreasonably burdens protected speech. A less
restrictive way to accommodate the right to communicate is
to require the solicitor to provide the recipient of the
communication a way to indicate that he or she does not
want to receive the communication. Such an approach
accomplishes the goals of this bill in a manner less
burdensome on protected speech."
The California Attorneys for Criminal Justice states they "
oppose the imposition of new criminal penalties for use of
another person's Internet domain name. Civil penalties and
liabilities are a more appropriate means of addressing this
behavior (together, of course, with preventive measures)."
ASSEMBLY FLOOR :
AYES: Ackerman, Aguiar, Alby, Alquist, Aroner, Ashburn,
Baca, Baldwin, Battin, Baugh, Bordonaro, Bowen, Bowler,
Brewer, Brown, Bustamante, Campbell, Cardenas, Cardoza,
Cedillo, Cunneen, Davis, Escutia, Figueroa, Firestone,
Frusetta, Gallegos, Granlund, Havice, Hertzberg, Honda,
House, Kaloogian, Keeley, Knox, Kuehl, Kuykendall, Leach,
Lempert, Leonard, Machado, Margett, Martinez, Mazzoni,
Miller, Morrissey, Morrow, Napolitano, Olberg, Oller,
Ortiz, Papan, Perata, Poochigian, Prenter, Pringle,
Richter, Runner, Scott, Shelley, Strom-Martin, Sweeney,
Takasugi, Thompson, Thomson, Washington, Wayne, Wildman,
Woods, Villaraigosa
NOES: McClintock, Migden, Murray
NOT VOTING: Ducheny, Floyd, Goldsmith, Pacheco, Torlakson,
Vincent, Wright
CP:cm 8/13/98 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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