Governor Schwarzenegger Signs New Anti-Spam Law
by: Annette M. Hall
Updated: April 15, 2005
Posted: September 23, 2004
On Friday, California Governor Schwarzenegger signed the new anti-spam bill into law.
Under the provisions of SB 1457, authored by Senator Kevin Murray, D-Culver City,
Internet service providers, the attorney general and recipients of commercial "spam"
e-mail will be able to recover damages of up to $1,000 per unsolicited e-mail, which
doesn't disclose a valid e-mail address contact and the name and location of the sender.
Damages are capped at $1,000,000.
In 2003, Senator Murray had authored SB 186, completely banning e-mail spam in California.
To enforce this ban, SB 186 created a private right of action whereby a consumer or an
internet service provider (ISP) could sue spammers and recover damages.
Within months of its passage, SB 186 was preempted by a federal bill (S. 877), which
allows for spam as long as various conditions are met. These conditions include offering
the ability to opt-out, a valid e-mail address contact, and disclosure of the name and
location of the spam sender.
Although this federal measure preempted California's complete prohibition of spam, it
did not preempt the private 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 products.
SB 1457 is intended to provide clean-up language and ensure a private right
of action is not in conflict with current federal law.
Existing federal law:
- Requires that commercial e-mail be labeled, have a valid return address, and
a physical address. Requires that e-mailers allow recipients to opt out of receiving
further commercial e-mail, and provides senders 10 business days to process opt out
requests.
- Prohibits the use of deceptive subject lines and false headers in such messages,
and prohibits harvesting e-mail addresses from Websites.
- Provides criminal penalties for fraudulent headers and using other people's e-mail
accounts or computers to send commercial e-mail. Also provides for civil enforcement
by the Federal Trade Commission (FTC), state attorneys general, or Internet Service
Providers (ISPs), including actual damages and statutory damages up to $250 per e-mail,
with a cap of $2 million per incident, or $6 million if the violation of the federal
law is willful.
- Preempts any state law that regulates the use of e-mail to send commercial messages
but allows state laws that address falsity and deception to remain in place.
Unfortunately, the California version of the bill deleted provisions that would have
prohibited anyone from collecting e-mail addresses or registering multiple e-mail addresses
for the express purpose of sending unsolicited commercial e-mail advertisements from or to
any California e-mail address.
