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Home Court filings In re Plaid Inc. Privacy Litigation — N.D. Cal., No. 4:20-cv-03056-DMR Exhibit 7 — Plaid Privacy (Dkt. 108.8)

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Exhibit 7 — Plaid Privacy (Dkt. 108.8)

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Exhibit 7, Document 108-8, filed 11/17/20 in No. 4:20-cv-03056-DMR in the U.S. District Court for the Northern District of California. It is a five-page printout of the Senate Judiciary Committee bill analysis of SB 355 (Murray), Anti-Phishing Act of 2005, as amended March 29, 2005, for a hearing on April 5, 2005 with Senator Joseph L. Dunn as Chair. The analysis describes a bill that would prohibit posing as a legitimate online company to trick a recipient into revealing personal information, and would let the Attorney General, a district attorney or an affected individual, Internet service provider, Web site owner or trademark owner sue. It reports remedies of the greater of actual damages or $500,000 per violation, with treble damages for a pattern or practice, and ends with a question on attorneys' fees.

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CourtU.S. District Court for the Northern District of California
Filed2020-11-17

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“Exhibit 7 — Plaid Privacy (Dkt. 108.8).” U.S. District Court for the Northern District of California, No. 4:20-cv-03056-DMR, Doc. 108-8, filed 2020-11-17. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-plaid-privacy-cand-359040/2020-11-17-gov-uscourts-cand-359040-108-8-doc-108-8/, SHA-256 81dc329d5e1b9d9dc0b5fbc5d30bca7e64942ec14e2e15e092809f818a898851.

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EXHIBIT 7 
Case 4:20-cv-03056-DMR     Document 108-8     Filed 11/17/20     Page 1 of 5

3/27/2020
SB 355 Senate Bill - Bill Analysis
leginfo.ca.gov/pub/05-06/bill/sen/sb_0351-0400/sb_355_cfa_20050518_121926_sen_comm.html
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                                                                                                           BILL ANALYSIS                                            
 
 
 
 
 
 
                           SENATE JUDICIARY COMMITTEE 
                         Senator Joseph L. Dunn, Chair 
                           2005-2006 Regular Session 
 
 
          SB 355                                                 S 
          Senator Murray                                         B 
          As Amended March 29, 2005 
          Hearing Date:  April 5, 2005                           3 
          Business & Professions Code                            5 
          AMT:cjt                                                5 
                                                                  
 
                                     SUBJECT 
                                          
                           Anti-Phishing Act of 2005 
 
                                   DESCRIPTION   
 
          This bill would prohibit "phishing," the act of posing as a   
          legitimate online company in an email, Web page, or other   
          Internet communication in order to trick a recipient into   
          revealing his or her personal information.   
 
          The prohibitions of the bill would be enforceable through a   
          suit brought by the Attorney General or a district   
          attorney, or by an individual, Internet service provider   
          (ISP), Web site owner, or trademark owner who was adversely   
          affected by a violation of the Act.  Remedies would include   
          the greater of actual damages or $500,000 per violation.    
          Treble damages would be permissible for a "pattern or   
          practice" of violations.  Attorneys' fees could be awarded   
          to the prevailing party. 
 
                                    BACKGROUND   
 
          "Phishing" is a widespread technique for obtaining personal   
          information, and is used to facilitate identity theft and   
          other crimes.  Phishers use fraudulent emails or Web sites   
          to trick consumers into providing personal information,   
          such as bank account numbers and social security numbers,   
          to what is believed to be a legitimate company.  The author   
          explains: 
 
               Customers often receive a legitimate looking   
                                                                  
          (more) 
 
 
 
          SB 355 (Murray) 
          Page 2 
 
 
 
               email that appears to be from their bank or [a]   
               retailer with whom they do business.  The   
               consumer is often told via e-mail that a review   
               of their account found "unusual activity" and   
               directs them to a phony website where they are   
               compelled to provide personal information such as   
               their name, account number and other relevant   
               data.  Criminals have become very good at   
               mimicking legitimate emails and setting identical   
               Web sites. 
                             CHANGES TO EXISTING LAW 
            
          1.  Existing law  does not regulate "phishing" actions, but   
            makes fraud actionable where the following has been   
            established: (1) a misrepresentation; (2) knowledge of   
            falsity; (3) intent to defraud, i.e., to induce reliance;   
            (4) justifiable reliance; and (5) resulting damage.    
            [Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34   
            Cal. 4th 979, 990.]  
            
            This bill  would make it unlawful for a person to use a   
            Web page, email, or the Internet to misrepresent that he   
            or she is an online business (e.g., to indicate that he   
            or she is or represents an online business without   
            authorization from that business) and solicit or induce   
            another person to provide his or her personal   
            information. 
 
          2.  Existing law  provides that an attorney general or   
            district attorney can seek an injunction and civil   
            penalties of up to $2,500 per instance for any unlawful   
            business act or practice.  [Bus & Prof Code  17200,   
            17204, 17206.]  An individual may seek an injunction for   
            an unlawful business act or practice if he or she   
            suffered an injury in fact and lost money or property as   
            a result.  [Bus & Prof Code  17204.] 
            
            This bill  would permit the Attorney General or a district   
            attorney to bring an action against a person who violates   
            the Anti-Phishing Act.  An individual, ISP, Web page   
            owner, or trademark owner who was adversely affected by a   
Case 4:20-cv-03056-DMR     Document 108-8     Filed 11/17/20     Page 2 of 5

3/27/2020
SB 355 Senate Bill - Bill Analysis
leginfo.ca.gov/pub/05-06/bill/sen/sb_0351-0400/sb_355_cfa_20050518_121926_sen_comm.html
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            violation would also be permitted to bring an action. But   
            the bill specifies that an individual may only bring an   
            action against a person who has directly violated the   
            Act.   
                                                                        
 
 
 
 
          SB 355 (Murray) 
          Page 3 
 
 
 
 
             This bill  would permit recovery of remedies that include   
            injunctive relief and the greater of actual damages or   
            $500,000 per separate violation.  The bill would specify   
            that multiple violations resulting from "any single   
            action or conduct" only constitute one violation.   
 
             This bill  would permit a court to award damages up to   
            three times the amount of damages otherwise recoverable   
            when it is established that a defendant has a "pattern or   
            practice" of violating the Act. 
 
             This bill  would permit a prevailing party to seek   
            attorneys' fees and costs. 
           
 
 
 
 
 
 
                                     COMMENT 
            
           1.Stated need for the bill   
 
            The author states: 
 
               According to the FBI and the Internet Crime   
               Complaint Center, 78% of all criminal "phishers"   
               are located in the United States.  Of these, 15%   
               of all phishing scams originate in California,   
               the most in the nation.  In 2004 alone, there   
               were over 100,000 reports of this fraud with over   
               76,000 consumers losing money.  In reported cases   
               alone, consumers lost over $193 million in 2003   
               and 2004. 
 
            The California Alliance for Consumer Protection notes it   
            has received numerous complaints in recent weeks from   
            consumers who filled out forms on false "EBAY web pages"   
            with their personal information, thinking that those   
            pages were authentic. 
 
            The Computing Technology Industry Association (CompTIA)   
            states: 
                                                                        
 
 
 
 
          SB 355 (Murray) 
          Page 4 
 
 
 
 
               Billions of dollars of Californian commerce, jobs   
               and productivity gains are tied to the spread of   
               Internet commerce and communications.  Confidence   
               in the integrity of personal information   
               transmitted via the Internet remains an integral   
               part of the medium's development.  However,   
               recent independent studies, polls and national   
               news reports reveal that phishing is greatly   
               undermining that confidence - phishing tops the   
               concerns of many inside and outside of the IT   
               industry as potentially hobbling the Internet's   
               exciting growth. 
 
            CompTIA notes that SB 355 "puts real 'teeth'" into its   
            prohibitions by making each separate violation punishable   
            by $500,000 in damages, and tripling damages where a   
            pattern of phishing has been established. 
 
            Microsoft states it is important to enact legislation to   
            combat the threat of phishing, in addition to using other   
            tools such as technology innovation, targeted   
            enforcement, and user education.  Microsoft contends that   
            the "[s]trong laws and adequate enforcement" provided by   
            SB 355 will be critical to addressing the phishing   
            problem. 
             
           2.The term "online business" needs definition   
 
            Since the prohibitions of this bill are limited in   
            application to those who pose as an "online business,"   
            this term needs to be defined.  The author has committed   
            to work with industry to craft a definition that will fit   
            the context of the phishing practices this bill aims to   
            prohibit.  
Case 4:20-cv-03056-DMR     Document 108-8     Filed 11/17/20     Page 3 of 5

3/27/2020
SB 355 Senate Bill - Bill Analysis
leginfo.ca.gov/pub/05-06/bill/sen/sb_0351-0400/sb_355_cfa_20050518_121926_sen_comm.html
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           3.Clarifying language needed for the terms of the bill's   
            private right of action   
 
            The language of the bill creates a private right of   
            action for "any person who is either engaged in the   
            business of providing Internet access service to the   
            public or who owns a Web page or trademark and who is   
            adversely affected by a violation of [the Act]. . . ."    
            [Section 22948.3(a) of SB 355 on page 2, lines 38-40.]    
                                                                        
 
 
 
 
          SB 355 (Murray) 
          Page 5 
 
 
 
            The bill also provides that an individual adversely   
            affected by a violation may only sue the direct violator.   
             [Section 22948.3(d) of SB 355 on page 3, lines 17-20.] 
 
            Two issues are unclear from this language:  (1) whether   
            ISPs must be adversely affected by a violation before   
            bringing suit; and (2) whether any individual who is   
            adversely affected by a violation may sue (as implied in   
            subparagraph (d)), or only those individuals described in   
            subparagraph (a). 
 
            The author's staff has clarified that the author intends   
            for an ISP's right of action to attach only when it   
            suffers an adverse effect, and that he intends for all   
            adversely affected individuals to have a private right of   
            action.  Committee staff is working with the author's   
            staff to craft language that will make these intentions   
            explicit. 
 
            SHOULD THESE PROVISIONS BE CLARIFIED? 
 
           4.Should the provision defining "violation" be modified (or   
            deleted)? 
            
            The bill provides that multiple violations of the Act   
            will be treated as one violation for purposes of   
            calculating damages when those violations "result[ed]   
            from a single action or conduct."  [Section 22948.3(b).]    
            The purpose and scope of this provision is unclear. 
 
            One possible interpretation is that the single act of   
            emailing a phishing letter to a list of email addresses   
            is only one violation of the Act, instead of a separate   
            violation for each recipient.  This is clearly out of   
            line with the intentions of the Act.  Mass emails are   
            frequently used by phishers, since they often must appeal   
            to large numbers of victims in the hope of getting a few   
            responses before taking down their Web site to avoid   
            being caught.  There is no reason for mass emails to   
            receive smaller damages than separate emails sent to the   
            same number of victims. 
 
            Even assuming the language of this provision may be   
            modified to exclude the circumstance described above, it   
            is not clear how the provision is helpful in assessing   
                                                                        
 
 
 
 
          SB 355 (Murray) 
          Page 6 
 
 
 
            damages under the Act. 
            SHOULD THIS PROVISION BE DELETED FROM THE BILL?  OR   
            SHOULD IT BE MODIFIED TO CLARIFY ITS SCOPE?   
 
          5.   Should the attorneys' fees provision be limited to   
          prevailing plaintiffs?   
 
            The general rule governing attorneys' fees in the United   
            States is that each party must bear the cost of his or   
            her own attorneys' fees, regardless of who prevails in   
            litigation.  Fee shifting statutes are enacted only when   
            society considers a statutory or constitutional right   
            important enough to justify fee shifting.  And fee   
            statutes may be weighted in favor of "prevailing   
            plaintiffs" when society seeks to encourage vigorous,   
            good faith private enforcement of a right.  [See Choate   
            v. County of Orange (2000) 86 Cal. App. 4th 312, 322-23.]   
             This is because making fees available to both parties   
            may allow the party with greater economic resources to   
            use the fees provision as a "hammer" to discourage   
            individual suits. 
 
            This bill provides that any prevailing party may seek   
            attorneys' fees and costs.  This provision may discourage   
            individuals from enforcing their rights under the Act   
            "because they lack financial resources or because they   
            fear they will have to pay the other side's attorney fees   
            if they lose."  [Choate, 86 Cal. App. 4th at 322-23.] 
 
Case 4:20-cv-03056-DMR     Document 108-8     Filed 11/17/20     Page 4 of 5

3/27/2020
SB 355 Senate Bill - Bill Analysis
leginfo.ca.gov/pub/05-06/bill/sen/sb_0351-0400/sb_355_cfa_20050518_121926_sen_comm.html
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            SHOULD THE ATTORNEYS' FEES PROVISION BE AMENDED TO STATE   
            THAT FEES ARE ONLY AVAILABLE TO PREVAILING PLAINTIFFS? 
 
          Support:  California Alliance for Consumer Protection,   
                 Computing Technology Industry Association (CompTIA),   
                 Microsoft, Tech Net 
 
          Opposition:  None Known 
 
                                     HISTORY 
            
          Source:  Author 
 
          Related Pending Legislation:  None Known 
 
          Prior Legislation:  None Known 
                                                                        
 
 
 
 
          SB 355 (Murray) 
          Page 7 
 
 
 
 
                                 ************** 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                        
 
 
                                    
Case 4:20-cv-03056-DMR     Document 108-8     Filed 11/17/20     Page 5 of 5

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