Microsoft word - ab2950_fact_sheet.doc

AB 2950 – False and Deceptive Commercial Email
Assemblymember Jared Huffman

CAN-SPAM. Filters have not proven effective, in no small part because spammers use fraudulent and AB 2950 declares the intent of the Legislature to deceptive means to bypass filters and hide their prohibit false and deceptive spam, as specified. identity. A significant amount of spam is false or deceptive, either technically or in terms of the THE ISSUE
advertised content. Advertisers benefit from, but deny liability for, their advertising agents’ unlawful activities. And recipients bear the costs of spam, not Over 90 percent of all e-mail traffic in the United States is comprised of unsolicited commercial e-mail advertisements (spam), much of which includes false There has been litigation in California and federal courts under § 17529.5, but ambiguities and loopholes in the law make it too easy for spammers/advertisers According to Ferris Research Incorporated, a San to evade their liability, particularly when defendants Francisco consulting group, spam cost United States lie under oath and judges do not fully understand the organizations more than $17 billion in 2005, and California organizations well over $2 billion. Spam threatens the very viability of email as a means of communication, for individuals and business alike. Polls have reported that 74 percent of respondents AB 2590 makes nominal, yet important changes to favor making mass spamming illegal with only 12 current law in order to remove ambiguities and loopholes, and carry out – as much as possible – the Legislative intent of § 17529. AB 2950: BACKGROUND
Only targets false and deceptive commercial email, and thus operates within the clear SB 186 (Murray), Chapter 487/Statutes of 2003, exception-to-preemption permitted by the CAN- completely banned e-mail spam in California. To enforce this ban, SB 186 created a private right of • Targets spammers, advertisers (the ultimate action whereby a consumer or an Internet Service beneficiaries of the emails), and “spam networks” Provider (ISP) could sue spammers and advertisers and recover actual or statutory damages. commercial email. It also prohibits spam networks from claiming they are entitled to the Within months of its passage, Bus. & Prof. Code ISP “safe harbor” for routine transmission of § 17529 (SB 186) was mostly preempted by the federal CAN-SPAM Act of 2003 (S. 877) which • Provides examples of falsity & deception. makes spam legal as long as various conditions are • Adds standing for District Attorneys and City met. These conditions include offering the ability to opt-out, a valid e-mail address contact, and disclosure Does not change statutory damages of $1,000 per Although federal law preempted California's total email, private right of action, safe harbor for ISPs, prohibition of spam, it did not preempt the private attorney fees for prevailing plaintiff, and does not right of action consumers and ISPs have against those who send spam with misleading or falsified headers and information, as well as the advertisers of those These changes are important and support public policy against false and deceptive spam. AB 2950 will enable California to regain its proper place as the § 17529.5 is better than most states’ laws, by allowing leader in protecting its residents and businesses from individual recipients of spam to bring legal action, setting liquidated damages at $1,000 per spam, and authorizing attorney’s fees for a prevailing plaintiff. FOR MORE INFORMATION
However, existing laws have not stopped unlawful spam; in fact, the volume of spam has increased since


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