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California Spam Law

Jim McCraigh

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This law became effective January 1, 1999 in California regarding the sending of unsolicited email and faxes.


17538.4.  (a) No person or entity conducting business in this state
shall facsimile (fax) or cause to be faxed, or electronically mail
(e-mail) or cause to be e-mailed, documents consisting of unsolicited
advertising material for the lease, sale, rental, gift offer, or other
disposition of any realty, goods, services, or extension of credit
unless:
   (1) In the case of a fax, that person or entity establishes a
toll-free telephone number that a recipient of the unsolicited faxed
documents may call to notify the sender not to fax the recipient any
further unsolicited documents.
   (2) In the case of e-mail, that person or entity establishes a
toll-free telephone number or valid sender operated return e-mail
address that the recipient of the unsolicited documents may call or
e-mail to notify the sender not to e-mail any further unsolicited
documents.
   (b) All unsolicited faxed or e-mailed documents subject to this
section shall include a statement informing the recipient of the
toll-free telephone number that the recipient may call, or a valid
return address to which the recipient may write or e-mail, as the case
may be, notifying the sender not to fax or e-mail the recipient any
further unsolicited documents to the fax number, or numbers, or e-mail
address, or addresses, specified by the recipient.    In the case of
faxed material, the statement shall be in at least nine-point type.  In
the case of e-mail, the statement shall be the first text in the body of
the message and shall be of the same size as the majority of the text of
the message.
   (c) Upon notification by a recipient of his or her request not to
receive any further unsolicited faxed or e-mailed documents, no person
or entity conducting business in this state shall fax or cause to be
faxed or e-mail or cause to be e-mailed any unsolicited documents to
that recipient.
   (d) In the case of e-mail, this section 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.  For these purposes "electronic mail service provider"
means 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.
   (e) As used in this section, "unsolicited e-mailed documents" means
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:
   (1) The documents are addressed to a recipient with whom the
initiator does not have an existing business or personal
relationship.
   (2) The documents are not sent at the request of, or with the
express consent of, the recipient.
   (f) As used in this section, "fax" or "cause to be faxed" or "e-mail"
or "cause to be e-mailed" does not include or refer to the transmission
of any documents by a telecommunications utility or Internet service
provider to the extent that the telecommunications utility or Internet
service provider merely carries that transmission over its network.
   (g) In the case of e-mail that consists of unsolicited advertising
material for the lease, sale, rental, gift offer, or other
disposition of any realty, goods, services, or extension of credit, the
subject line of each and every message shall include "ADV:" as the first
four characters.  If these messages contain information that consists of
unsolicited advertising material for the lease, sale, rental, gift
offer, or other disposition of any realty, goods, services, or extension
of credit, that may only be viewed, purchased, rented, leased, or held
in possession by an individual 18 years of age and older, the subject
line of each and every message shall include "ADV:ADLT" as the first
eight characters.
   (h) An employer who is the registered owner of more than one e-mail
address may notify the person or entity conducting business in this
state e-mailing or causing to be e-mailed, documents consisting of
unsolicited advertising material for the lease, sale, rental, gift
offer, or other disposition of any realty, goods, services, or extension
of credit of the desire to cease e-mailing on behalf of all of the
employees who may use employer-provided and employer-controlled e-mail
addresses.
   (i) This section, or any part of this section, shall become
inoperative on and after the date that federal law is enacted that
prohibits or otherwise regulates the transmission of unsolicited
advertising by electronic mail (e-mail).


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 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.
   (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 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.
   (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 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.
   (d) An electronic mail service provider shall not be required to
create a policy prohibiting or restricting the use of its equipment 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 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 prior to the alleged violation, the
defendant had actual notice of both of the following:
   (i) The electronic mail service provider's policy on unsolicited
electronic mail advertising.
   (ii) The fact that the defendant's unsolicited electronic mail
advertisements would use or cause to be used the electronic mail service
provider's equipment located in this state.
   (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.

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