California Legislature Passes Anti-Spam Bill

(August 28, 1998)  The California legislature passed a bill on Thursday that would allow ISPs to sue junk e-mailers who violate their policies.  Gov. Pete Wilson is expected to sign the bill.

The bill, AB 1629, is sponsored by Assemblyman Gary Miller (Repub., LA County) and Assemblyman Jim Cunneen (Repub., Silicon Valley).  It would allow Internet service providers (ISPs), or "electronic mail service providers", to adopt policies regarding e-mail, and then sue the spammers who violate their policies.

This approach of allowing ISPs to in effect regulate spam differs from other legislation and proposed legislation which rely on either the recipients of spam or government regulators to bring suit.  ISPs, who bear the costs of carrying the increased traffic, and whose systems are sometimes shut down by excessive volumes of spam, often have both a huge incentive to sue, and the capability to bring suits.

The popular term "spam" is not used in the bill.  Rather, the bill covers "unsolicited electronic mail advertisements."  AB 1629 lists three criteria: 

• "the principal purpose of which is to promote, directly or indirectly, the sale or other distribution of goods or services to the recipient."
• "It is addressed to a recipient with whom the initiator does not have an existing business or personal relationship."
• "It is not sent at the request of or with the express consent of the recipient."

The bill then provides that users of an ISP, or "electronic mail service", may not send such spam over the equipment of an ISP whose policy forbids it.  The bill states:

No registered user of an electronic mail service provider shall use or cause to be used that electronic mail service provider's equipment located in this state in violation of that electronic mail service provider's policy prohibiting or restricting the use of its service or equipment for the initiation of unsolicited electronic mail advertisements.

The bill also provides that:

No individual, corporation, or other entity shall use or cause to be used, by initiating an unsolicited electronic mail advertisement, an electronic mail service provider's equipment located in this state in violation of that electronic mail service provider's policy prohibiting or restricting the use of its equipment to deliver unsolicited electronic mail advertisements to its registered users.

The teeth of the measure is found in a provision which allows ISPs, or "electronic mail service providers", to sue spammers for damages.  They can recover actual monetary loss, or $50 per message, up to $25,000 per day.  The bill reads:

In addition to any other action available under law, any electronic mail service provider whose policy on unsolicited electronic mail advertisements is violated as provided in this section may bring a civil action to recover the actual monetary loss suffered by that provider by reason of that violation, or liquidated damages of fifty dollars ($50) for each electronic mail message initiated or delivered in violation of this section, up to a maximum of twenty-five thousand dollars ($25,000) per day, whichever amount is greater.

The bill is limited scope.  First, the bill by it terms only affects cases where the spammer sends the email over equipment located in California.  Moreover, as a practical matter, foreign based spammers would be beyond the reach of California's courts.

Second, the bill does not outlaw spam.  It only gives ISPs the ability to regulate spam moving over their equipment.  A spammer may sends its junk mail through ISPs that do not forbid it.

Third, the bill only applies to commercial spam.  Junk political communications and charitable solicitations, for example, are not covered.

The new anti-spamming measure is part of a larger bill amending the existing law regulating telephone sellers.

Section 2 of AB 1629.
California unsolicited commercial e-mail bill.
Source: California State Senate, Rules Committee.

SEC. 2. Section 17538.45 is added to the Business and Professions Code, to read:

17538.45. (a) For purposes of this section, the following words have the following meanings:

(1) "Electronic mail advertisement" means any electronic mail message, the principal purpose of which is to promote, directly or indirectly, the sale or other distribution of goods or services to the recipient.

(2) "Unsolicited electronic mail advertisement" means any electronic mail advertisement that meets both of the following requirements:

(A) It is addressed to a recipient with whom the initiator does not have an existing business or personal relationship.

(B) It is not sent at the request of or with the express consent of the recipient.

(3) "Electronic mail service provider" means any business or organization incorporated qualified to do business in California that provides registered users 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.

(4) "Initiation" of an unsolicited electronic mail advertisement refers to the action by the initial sender of the electronic mail advertisement. It does not refer to the actions of any intervening electronic mail service provider that may handle or retransmit the electronic message.

(6)

(5) "Registered user" means any individual, corporation, or other entity that maintains an electronic mail address with an electronic mail service provider.

(b) No registered user of an electronic mail service provider shall use or cause to be used that electronic mail service provider's equipment or service located in this state in violation of that electronic mail service provider's published policy prohibiting or restricting the use of its service or equipment for the initiation of unsolicited electronic mail advertisements.

(c) No individual, corporation, or other entity shall use or cause to be used, by initiating an unsolicited electronic mail advertisement, an electronic mail service provider's equipment or service located in this state in violation of that electronic mail service provider's published policy prohibiting or restricting the use of its equipment or service to deliver unsolicited electronic mail advertisements to its registered users.

(d) An electronic mail service provider shall not be required to create a policy prohibiting or restricting the use of its equipment or service for the initiation or delivery of unsolicited electronic mail advertisements.

(e) Nothing in this section shall be construed to limit or restrict the rights of an electronic mail service provider under Section 230(c)(1) of Title 47 of the United States Code, or any decision of an electronic mail service provider to permit or to restrict access to or use of its system, or any exercise of its editorial function.

(f) (1) In addition to any other action available under law, any electronic mail service provider whose published policy on unsolicited electronic mail advertisements is violated as provided in this section may bring a civil action to recover the actual monetary loss suffered by that provider by reason of that violation, or liquidated damages of fifty dollars ($50) for each electronic mail message initiated or delivered in violation of this section, up to a maximum of twenty-five thousand dollars ($25,000) per day, whichever amount is greater.

(2) In any action brought pursuant to paragraph (1), the court may award reasonable attorney's fees to a prevailing party.

(3) (A) In any action brought pursuant to paragraph (1), the electronic mail service provider shall be required to establish as an element of its cause of action that its policy on unsolicited electronic mail advertisements had been published for at least 30 days preceding the alleged violation of that policy. prior to the alleged violation, the defendant had actual notice of both of the following:

(B) In this regard, the Legislature finds that with rapid advances in Internet technology, and electronic mail technology in particular, Internet service providers are already experimenting with embedding policy statements directly into the software running on the computers used to provide electronic mail services in a manner that displays the policy statements every time an electronic mail delivery is requested. While the state of the technology does not support such a finding at present, the Legislature believes that, in a given case at some future date, a showing that notice was supplied via electronic means between the sending and receiving computers could be held to constitute actual notice to the sender for purposes of this paragraph.

(4) A violation of this section shall not be subject to Section 17534.