During a hearing before a Senate Commerce subcommittee on Wednesday afternoon, politicians expressed frustration over the rising tide of unsolicited bulk e-mail and also cited pornography on peer-to-peer networks such as Kazaa and Morpheus as another promising target for FTC staff attorneys.
The focus of the hearing was a proposal drafted by the FTC that, asby CNET News.com, would basically turn the agency's investigators into spam cops. They would receive the power to serve secret requests to Internet service providers for subscriber information, peruse FBI criminal databases and swap sensitive information with foreign law enforcement agencies.
Sen. Ron Wyden, D-Ore., who has co-sponsored a , called spam a "scourge" that is "threatening to poison the medium" and urged the FTC to be aggressive in wielding whatever new powers it receives. Wyden predicted a committee vote on his antispam proposal, co-sponsored with Conrad Burns, R-Mont., next week.
Subcommittee Chairman Gordon Smith, R-Ore., suggested that "grossly pornographic" files on P2P networks are a "deceptive trade practice which seems to be under the FTC's jurisdiction." Under the Federal Trade Commission Act, the agency has power to punish "unfair or deceptive acts or practices in or affecting commerce."
Smith asked the FTC what actions it was taking to protect "young people from what is clearly deception when it comes under the heading Harry Potter and is clearly pornography."
FTC Chairman Tim Muris, who testified along with three other commissioners, replied by saying his staff's research shows that P2P pornography is typically labeled correctly. "We find that in many cases, unfortunately, they're quite explicit about what they're leading you to and are not deceptive," Muris said.
Smith also raised privacy concerns, warning that anyone installing P2P software could leak sensitive files. "In tapping into these things, they expose their own private materials--health information--into the public domain," Smith said. (In general, P2P applications share only files in a directory the user specifies.)
The proposed antispam and antifraud legislation, titled the International Consumer Protection Enforcement Act, could be inserted into a law reauthorizing the FTC. In a statement, the FTC said its proposal "would be particularly helpful to enable the FTC to investigate deceptive spammers more effectively and work better with international law enforcement partners...The FTC believes that the proposed legislation would provide more effective investigative and enforcement tools and would enhance the FTC's continuing law enforcement efforts."
During a House subcommittee hearing earlier in the day, politicians seemed taken aback by the existence of the FTC's surprise proposal.
"I was surprised to find the FTC has a legislative proposal for spam included in its reauthorization package," said Rep. Billy Tauzin, R-La., chairman of the House Energy and Commerce Committee.
Tauzin said many points were akin to those in athat he co-sponsored last month, adding that the earlier proposal "may go even further than the FTC proposal as it allows consumers the opportunity to opt out of all commercial e-mail, not just unsolicited commercial e-mail."
Privacy groups have raised concerns about the FTC's plan, saying it does not contain sufficient checks and balances. Marc Rotenberg, director of the Electronic Privacy Information Center, testified that "the legislation opens the door to abuse in that it creates new enforcement authority without corresponding safeguards...The bill should be drafted in such a way so as to safeguard American values, including procedural fairness, privacy protection and open government."
The proposal would let the FTC send a confidential subpoena--called a civil investigative demand--to an Internet service provider, requiring its recipient to "keep such process confidential." Without it, the FTC argues, "when fraud targets are given notice of FTC investigations they often destroy documents." The target of the investigation may not be notified for up to half a year, according to this proposal.
Verizon Communications criticized that aspect of the legislation, saying that it is inconsistent with current privacy laws that "do not permit criminal law enforcement agencies to obtain this same information without notice to the customer in the absence of a judicially ordered search warrant. There is no reason why the FTC should operate under different rules than that required for other law enforcement agencies."
Sen. Frank Lautenberg, D-N.J., wondered whether antispam sentiment was going too far. "Are we doing anything that protects the legitimate players and lets them operate without being harassed by the FTC?" Lautenberg asked.