Today's Law As Amended


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SB-1822 Privacy: online communications.(2003-2004)



As Amends the Law Today


SECTION 1.
 The Legislature finds and declares as follows:
(a) In today’s world of advanced communications technology, privacy is a major concern of consumers and of the Legislature.
(b) A key component of privacy is the trust consumers have in service providers who make promises to their customers and the public concerning the manner in which intimate and confidential data will be treated.
(c) There are currently widespread operational and legitimate electronic mail technologies and practices that scan incoming messages for appropriate and useful purposes including, but not limited to, the following:
(1) Spam filters.
(2) Translation of content into audio for the blind.
(3) Automatic sorting and forwarding.
(4) Blocking image advertisements and Internet Web bugs.
(5) Stripping hypertext markup language from incoming messages for transmission to hand-held devices.
(6) Virus scanning.
(d) California consumers deserve, and businesses want to assure, that the content and substance of electronic mail and instant messages will remain private and secure and will never be used improperly as a source of personal profiles on consumers.

SEC. 2.

 Title 1.81.15 (commencing with Section 1798.88) is added to Part 4 of Division 3 of the Civil Code, to read:

TITLE 1.81.15. PRIVACY OF ONLINE COMMUNICATIONS

1798.88.
 For the purpose of this title:
(a) “Content” means any information regarding the substance, purport, or meaning of an electronic mail or instant message.
(b) “Customer” means the authorized subscriber or user of an electronic mail or instant message service or any other user with apparent authority to use the service.
(c) “Deletes an electronic communication” means to take reasonable technical measures to ensure the electronic mail is inaccessible and unretrievable in the normal course of business.
(d) “Derive” means to deduce or infer personally identifiable information, user characteristics, or content of an electronic mail or instant message.
(e) “Divulge” means to make personally identifiable information, user characteristics, or content of an electronic mail or instant message known to a person other than the addressee or intended recipient of the electronic mail or instant message.
(f) “Electronic mail” or “e-mail” means an electronic message that is sent to an e-mail address and transmitted between two or more telecommunications devices, computers, or electronic devices capable of receiving electronic messages, whether or not the message is converted to hard copy format after receipt or is viewed upon transmission or stored for later retrieval. “Electronic mail” or “e-mail” includes electronic messages that are transmitted through a local, regional, or global computer network. “Electronic mail” includes the subject line, the sender name, address, one or more recipient names, and text, including linked information and attachments.
(g) “Electronic mail or instant message service” means sending or receiving electronic mail or instant messages or providing to users of the electronic mail or instant messaging service the ability to send or receive electronic mail or instant messages, and includes identifying, filtering, or removing spam, computer viruses, or other malicious programs, and nothing in this title shall be construed to render illegal identifying, filtering, or removing spam, computer viruses, or other malicious programs.
(h) “Electronically stored” means both of the following:
(1) Any temporary, intermediate, or permanent storage of an electronic mail or instant message incidental to the transmission thereof.
(2) Any storage of that communication by a provider for purposes of backup protection of the communication.
(i) “Instant message” is any message provided by an instant messaging service.
(j) “Intended recipient” does not mean a provider of electronic mail or instant message services, unless the provider is an addressee of an instant message or electronic mail.
(k) “Lawful consent” means affirmative consent where the provider has clearly disclosed to the customer the type of information to be derived or divulged and the uses to which the information will be put.
(l) “Personally identifiable information” means any information that when it is disclosed identifies, describes, or is able to be associated with an individual and includes electronic mail address and IP address.
(m) “Provider of electronic mail or instant messaging service” means any person, including an Internet service provider and a provider of remote computing services, that is an intermediary in sending or receiving electronic mail or instant messages or that provides to users of the electronic mail or instant messaging service the ability to send or receive electronic mail or instant messages. “Provider of electronic mail or instant messaging service” does not include a person’s provision of electronic mail or instant message services to its own employees, agents, and contractors for use in its operations.
(n) “Provider’s marketing purposes” means any of the following:
(1) For the purpose of soliciting or inducing for consideration the purchase, rental, lease or exchange of products, goods, property, or services offered by the provider or any subsidiary, affiliated or related company or person of the provider.
(2) For the purposes of soliciting or inducing for consideration the purchase, rental, lease, or exchange of products, goods, property, or services offered by a person other than the provider.
(3) For the purposes of obtaining information to seek commercial advantage for the provider or any subsidiary, affiliated or related company or person of the provider.
(4) For the purposes of inducing the provider for consideration to divulge to another person personally identifiable information, user characteristics, or content or meaning derived from electronic mail or instant messages.
(o) “Spam” means an unsolicited commercial e-mail advertisement sent to a recipient who meets both of the following criteria:
(1) The recipient has not provided direct consent to receive advertisements from the advertiser.
(2) The recipient does not have a preexisting or current business relationship with the advertiser promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit.
1798.88.1.
 (a) Except as provided in subdivision (c), a provider of an electronic mail or instant messaging service shall not knowingly divulge to any person or entity, including the provider itself, personally identifiable information, user characteristics, or content of an electronic mail or instant message while the electronic mail or instant message is being electronically stored by the provider.
(b) A provider shall not divulge to any person or entity, including the provider itself, personally identifiable information, user characteristics, or content of an electronic mail or instant message for the provider’s marketing purposes while the electronic mail or instant message is being electronically stored by the provider without the lawful consent of the author of the electronic mail or instant message to be divulged. This subdivision does not prevent a provider from divulging for marketing purposes aggregated data that demonstrates the number of instances customers have viewed or linked to an advertisement.
(c) Other than for the provider’s marketing purposes, a provider may divulge personally identifiable information, user characteristics, or the contents of an electronic mail or instant message being electronically stored by the provider pursuant to any of the following:
(1) To an addressee or intended recipient of the electronic mail or instant message or an agent of the addressee or intended recipient.
(2) With the lawful consent of the customer, addressee, or intended recipient or an agent of the addressee or intended recipient of the electronic mail or instant message.
(3) To a person employed or authorized by the provider where divulging the personally identifiable information, user characteristics, or contents is necessarily incident to the rendition of the electronic mail or instant message service.
(4) As may be otherwise necessarily incident to the rendition of the electronic mail or instant message service or to the protection of the rights or property of the provider of that service.
(5) To a law enforcement agency to comply with valid legal process.
1798.88.2.
 (a) Except as provided in subdivision (c), a provider of an electronic mail or instant messaging service shall not knowingly derive from electronically stored electronic mails or instant messages personally identifiable information, user characteristics, or content from electronic mails or instant messages.
(b) (1) A provider shall not derive personally identifiable information or user characteristics from electronic mail or instant message being electronically stored by the provider for the provider’s marketing purposes.
(2) A provider shall not derive content from an electronic mail or instant message being electronically stored by the provider for the provider’s marketing purposes unless all of the following are true:
(A) The derivation is automated.
(B) The derivation does not associate the contents of an electronic mail or instant message with personally identifiable information or user characteristics.
(C) What is derived is not divulged to any person, including the provider.
(D) The derivation is with the lawful consent of the customer.
(E) What is derived is not retained by the provider or any other person.
(3) This subdivision does not prevent a provider from deriving for marketing purposes aggregated data that demonstrates the number of instances customers have viewed or linked to an advertisement.
(c) Other than for a provider’s marketing purposes, a provider may derive and retain personally identifiable information, user characteristics, or the contents of an electronic mail or instant message for the purposes of divulging the information pursuant to any of the following:
(1) To an addressee or intended recipient of the electronic mail or instant message or an agent of the addressee or intended recipient.
(2) With the lawful consent of the customer, addressee, or intended recipient of the communication or an agent of the addressee or intended recipient.
(3) To a person employed or authorized by the provider where divulging the information is necessarily incident to the rendition of the electronic mail or instant message service.
(4) As may be otherwise necessarily incident to the rendition of the electronic mail or instant message service or to the protection of the rights or property of the provider of that service.
(5) To a law enforcement agency to comply with valid legal process.
1798.88.3.
 (a) No provider of electronic mail or instant messaging services may permit an employee or other natural person to have access to personally identifiable information, user characteristics, or the content in electronic mails or instant messages derived from electronic mails or instant messages, except as permitted by Sections 1798.88.1 and 1798.88.2.
(b) A provider of electronic mail or instant messages shall delete an electronic communication when the customer has indicated he or she wants the communication deleted.
SEC. 3.
 Nothing in this act shall imply the consent of any party where the consent of the party would otherwise be required.
SEC. 4.
 The provisions of this title are severable. If any provision of this title or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 5.
 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to ensure privacy with regard to the impending introduction of new technology that permits the scanning of e-mail content for advertising purposes, it is necessary that this act take effect immediately.