BILL ANALYSIS
AB 1676
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Date of Hearing: March 17, 1998
ASSEMBLY COMMITTEE ON CONSUMER PROTECTION,
GOVERNMENTAL EFFICIENCY, AND ECONOMIC DEVELOPMENT
Susan Davis, Chair
AB 1676 (Bowen) - As Amended: March 12, 1998
SUBJECT : Prohibits unsolicited advertising via electronic mail
SUMMARY : Prohibits the practice of sending unsolicited commercial
e-mail, which is commonly referred to as spam or junk e-mail.
Specifically, this bill :
1) Prohibits the sending of unsolicited commercial e-mail to a
recipient if the recipient has notified the sender to cease.
2) Prohibits any person or entity conducting business in the state
from sending unsolicited advertising material via e-mail unless
the person or entity establishes a toll-free telephone number
for individuals to call to notify the sender not to send any
further unsolicited e-mail advertisements.
3) Requires all unsolicited e-mail to include a statement, in at
least 9-point type, informing the recipient of the toll-free
telephone number and e-mail address of the sender.
4) Makes it an infraction, punishable by a fine of $500, for each
and every transmission sent in violation of the bill's
prohibitions.
5) Protects Internet service providers (ISPs) from liability
against spamming claims if ISPs merely carry e-mail
transmissions over their networks.
EXISTING LAW :
1) Allows individuals to opt-out of receiving unsolicited
advertising via fax and imposes a $500 fine for each violation
of this provision (Chapter 564, Statutes of 1992, AB 2438,
Katz).
2) Is silent on unsolicited commercial e-mail advertising.
3) 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.
FISCAL EFFECT : No state costs.
COMMENTS :
1) Measure Intended to Stop Junk E-Mail
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According to the author's office, the measure is intended to
prevent spam, the junk mail of the Information Age. The bill
seeks to accomplish this by giving individual consumers the
right to opt-out of spam distribution
lists and fining individuals who do not comply with consumers'
wishes.
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, which
eventually imposes a financial cost on individual consumers.
As reported by 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 ISPs 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 ISPs because there is no real
cost to sending mass e-mails. Rather, junk e-mail shifts the
majority of advertising costs from the advertiser to the
recipient because individuals and their ISPs bear the costs in
lost time, damaged equipment, lost productivity, and lost
business opportunities.
The argument for a legislative solution is that unsolicited
commercial e-mail imposes a cost on recipients and advertisers
should be required to gain affirmative assent from consumers
before sending e-mail to them.
2) Precedent for Consumer Opt-Out Exists
This bill is modeled on the state's existing junk fax law,
which allows individuals to opt-out of receiving unsolicited
advertising via fax and imposes a $500 fine for each violation
(Chapter 564, Statutes of 1992, AB 2438, Katz).
Existing federal law and voluntary industry opt-out programs
allow individuals to protect themselves from unsolicited
advertising conducted via telemarketing or direct mail
marketing.
By establishing "do not call" lists, the federal Telemarketing
and Consumer Fraud Abuse Prevention Act and the Telephone
Consumer Protection Act of 1991 (TCPA) make it illegal for
telemarketers to make unsolicited calls to individuals who have
requested not to be called. (16 CFR 310.4 and 47 CFR 64.1200)
In addition, individuals can remove themselves from most
national mailing lists by contacting the Direct Marketing
Association's (DMA) Mail Preference Service, which informs
subscribing organizations to remove names from their
distribution lists.
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However, federal law has not been updated to include junk
e-mail and voluntary industry standards have not proven
effective in stopping the spamming practices of certain
Internet advertisers.
3) Additional Anti-Spamming Legislation Introduced
AB 1629 (Miller), which is pending before this Committee, is
also an anti-spamming bill. AB 1629 takes a different approach
to the junk e-mail problem by: (1) allowing ISPs, the
oftentimes innocent transmitters of junk e-mail, to recover
damages from spammers and (2) protecting domain names, which
are the addresses for paths used to transmit e-mail via the
Internet.
In addition, the author of this bill also has introduced AB
2640 to address the spamming problem by creating additional
civil remedies recoverable by ISPs for unauthorized use of
domain names.
Given the other two bills pending on the issue, the Committee
may want to consider whether the two approaches in the
bills--individual consumer opt-out and empowering ISPs to stop
the transmission of junk e-mail--are in conflict or
complementary.
4) Will the Bill be Effective Against Out-of-State Spam ?
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.
Additionally, critics question whether the bill will be
effective against spam that originates from outside of
California's borders. Specifically, they ask whether if the
sender of an out-of-state or offshore junk e-mail would be
subject to the provisions of this bill and whether the
provisions could be enforced.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County, and Municipal Employees
(AFSCME)
Opposition
Cheetah's of San Diego
DeJa Vu/Showgirls
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.)
AB 1676
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Analysis prepared by : Sailaja Cherukuri / aconpro / (916)
319-2089