BILL ANALYSIS
SENATE RULES COMMITTEE AB 1676
Office of Senate Floor Analyses
1020 N Street, Suite 524
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THIRD READING
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Bill No: AB 1676
Author: Bowen (D), et al
Amended: 8/20/98 in Senate
Vote: 21
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SENATE BUSINESS & PROFESSIONS COMMITTEE : 6-0, 6/22/98
AYES: Johannessen, Greene, Kelley, O'Connell, Rosenthal,
Polanco
NOT VOTING: Ayala
SENATE APPROPRIATIONS COMMITTEE : 8-3, 8/19/98
AYES: Johnston, Alpert, Burton, Dills, Hughes, Karnette,
Leslie, Mountjoy
NOES: Johnson, Kelley, McPherson
NOT VOTING: Calderon, Vasconcellos
ASSEMBLY FLOOR : 62-13, 5/18/98 - See last page for vote
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SUBJECT : Advertising: electronic mail
SOURCE : Author
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DIGEST : This bill prohibits the practice of sending
unsolicited commercial electronic mail, which is commonly
referred to as spam or junk e-mail.
ANALYSIS : Existing law:
1.Regulates advertising and provides that any violation of
those provisions generally is a misdemeanor, as well as
subject to injunctive relief and civil penalties.
2.As part of that advertising law, specifically prohibits a
person conducting business in this state from faxing
unsolicited advertising material, unless certain
conditions are satisfied, including a toll-free telephone
number recipients may call to stop such unsolicited faxes
("opt out") and notice thereof in the fax. Makes a
failure to comply with a recipient's request to stop
unsolicited faxes an infraction with up to $500 fine for
each and every fax transmission.
3.Does not require electronic mail (e-mail) to be labeled
to disclose its content.
This bill:
1.Expands the existing prohibition against unsolicited
faxed advertisements by amending it to include the
transmission of unsolicited advertising by e-mail.
2.Requires the sender of the unsolicited e-mail
advertisement to provide either a toll-free telephone
number or valid sender operated return e-mail address
that the recipient of the advertisement may call or
e-mail to notify the sender not to e-mail further
unsolicited documents ("opt-out" provision).
3.Requires the unsolicited e-mail advertisements to contain
a statement of specified size type, disclosing the
toll-free number or e-mail address which the recipient
may notify to stop further unsolicited e-mail
advertisements.
4.Prohibits sending unsolicited e-mail ads to any recipient
who has notified the sender to stop further unsolicited
e-mails.
5.Specifies that, in the case of e-mail, this bill 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.
6.Defines "electronic mail service provider" to mean any
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.
Defines "unsolicited e-mailed documents" to mean any
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:
A. The documents are addressed to a recipient with
whom the initiator does not have an existing business
or personal relationship.
B. The documents are not sent at the request of, or
with the express consent of, the recipient.
7.Excludes from these prohibitions, a telecommunications
utility or Internet service provider which merely carries
the transmission over its network.
8.Requires any unsolicited e-mail advertisements for the
sale, lease, rental, gift offer, or other disposition of
property or services, or for the extension of credit, to
include the acronym label "ADV." in the first four
characters of the e-mail's subject line, and to include
the acronym label "ADV:ADLT" in the first eight
characters of an e-mail's subject line when the goods or
services may only be viewed or purchased by someone 18
years of age or older (e-mail labeling requirement).
9.Becomes inoperative if federal law on this subject is
enacted.
Comments
The bill is sponsored by its author to prevent unsolicited
e-mail advertisements by providing consumer recipients with
the right to "opt-out" of spam distribution lists, and
penalizing spammers who do not provide consumers with the
specified means to opt-out or who fail to comply with their
requests to stop transmitting unsolicited advertisements.
It is modeled after the current prohibitions against
unsolicited junk fax advertisements and federal
telemarketing law that make it illegal for telemarketers to
make unsolicited calls to individuals who have requested
not to be called. The author's office notes that the bill
contains similar provisions to those currently being
proposed at the federal level.
Background
Opponents of unsolicited mass e-mail advertisements argue
that Internet users face a daily onslaught of unsolicited
e-mail from Internet businesses advertising goods and
services. The practice of sending mass unsolicited
e-mails, known as "spamming," often imposes a significant
time burden on Internet users and often can slow down or
completely disrupt on-line service, and can be a costly and
time consuming nuisance for recipients who are a captive
audience.
America OnLine, a major Internet Service Provider (ISP) has
reported that, 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 ISP's
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 ISP's because
there is no real cost to sending mass e-mails. Rather,
such junk e-mail shifts the majority of advertising costs
from the advertiser to the recipient because individuals
and their ISP's bear the costs in lost time, damaged
equipment, lost productivity, and lost business
opportunities.
Similar or Related Legislation
AB 1629 (Miller), on Senate Third Reading File, prohibits
unauthorized electronic mail advertisements and the
unauthorized use of Internet domain names.
AB 2640 (Bowen), currently in Assembly Judiciary 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 1999-00
2000-2001 Fund
Enforcement Unknown, non reimbursable -
Local
misdemeanor.
Senate Appropriation Committee staff notes that, since many
Internet providers are located outside of California,
compliance and enforcement of the labeling provisions of
this bill may be difficult.
SUPPORT : (Verified 8/21/98)
Silicon Valley Software Industry Coalition
Consumer Federation of California
Consumer Action
Californians Against Waste
American Federation of State, County and Municipal
Employees
Adult Webmasters Association
California District Attorneys Association
CalPIRG
OPPOSITION : (Verified 8/24/98)
California Internet Industry Alliance
California Alliance for Consumer Protection
The Adult Entertainment Industry Education Fund
ALERT (Adult Liberties & Erotic Rights are Threatened)
Adult Webmasters Association
ARGUMENTS IN SUPPORT : The bill is supported by Consumer
Action (CA), Californians Against Waste (CAW) and the
American Federation of State, County and Municipal
Employees (AFSCME). CA states that the problem of spam has
exploded in recent years and that without the bill
consumers will have no method to remove themselves from
spam e-mail lists. CA states that the Internet community
has done what they can to stop spam, that it is a losing
battle as there is no disincentive to deter commercial
users from sending unwanted e-mail. CA believes the bill's
"opt-out" feature and a $250 fine is a good first step.
CAW states that the ability of advertisers to send
unsolicited ads to millions at the click of a button has
brought "waste" to a whole new level and that the bill's
provisions would help curb spam and ensure that e-mail is
used only for legitimate purposes.
The California District Attorneys Association (CDAA) has
taken a support if amended position on this bill. The CDAA
believes criminalizing unsolicited e-mail ads is a good
idea but believes the bill's penalty for failing to stop
transmitting unsolicited e-mail after requested to do so by
a recipient should be changed from an infraction to a
misdemeanor, so it will be consistent with the misdemeanor
penalty applicable to the other prohibitions in the bill.
ARGUMENTS IN OPPOSITION : The California Internet
Industry Alliance states that this bill, "contains a
provisor that requires the "labeling" of unsolicited
electronic mail. Because the Internet is used by companies
and individuals throughout the world it is simply
unworkable for the State of California to propose to
require a California solution to labeling unsolicited
electronic mail.
"The bill seeks to apply to everyone conducting business in
California. There is no way for the sender of electronic
mail in another state or county to know if the e-mail
address is in California. Further, millions of non-English
speaking senders and recipients would not understand the
acronyms used."
ASSEMBLY FLOOR :
AYES: Alby, Alquist, Aroner, Baca, Battin, Bordonaro,
Bowen, Brown, Bustamante, Campbell, Cardenas, Cardoza,
Cedillo, Cunneen, Davis, Ducheny, Escutia, Figueroa,
Firestone, Frusetta, Gallegos, Granlund, Havice,
Hertzberg, Honda, Keeley, Knox, Kuehl, Kuykendall, Leach,
Lempert, Leonard, Machado, Margett, Martinez, Mazzoni,
McClintock, Migden, Miller, Morrissey, Murray,
Napolitano, Oller, Ortiz, Papan, Perata, Prenter, Runner,
Scott, Shelley, Strom-Martin, Sweeney, Takasugi,
Thompson, Thomson, Torlakson, Vincent, Washington, Wayne,
Wildman, Wright, Villaraigosa
NOES: Ackerman, Aguiar, Ashburn, Baldwin, Baugh, Bowler,
Brewer, Kaloogian, Morrow, Olberg, Poochigian, Pringle,
Woods
NOT VOTING: Floyd, Goldsmith, House, Pacheco, Richter
CP:cm 8/24/98 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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