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FTC seeks broad powers to fight spam

The agency asks Congress for new powers that would let it cooperate closely with governments abroad and prosecute domestic and overseas spammers more readily.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read
The Federal Trade Commission on Wednesday asked Congress for sweeping new powers that would let it cooperate closely with governments abroad and prosecute domestic and overseas spammers more readily.

A 13-page proposal drafted by the FTC would turn the agency's investigators into virtual spam cops, granting them the power to serve secret requests for subscriber information on Internet service providers, peruse FBI criminal databases and swap sensitive information with foreign law enforcement agencies.

The proposed legislation, titled the International Consumer Protection Enforcement Act (ICPEA) and seen by CNET News.com, spotlights the tension between the long-standing privacy rights of Internet users and the recent push in Washington to enact strong laws targeting the most extreme spammers. Civil libertarians already are alarmed at the ICPEA draft, saying it does not contain sufficient checks and balances, and would unreasonably curb the Freedom of Information Act.

"A recent study by the commission found that 66 percent of spam contained obvious indicia of falsity," the FTC's five commissioners said in a joint statement to Congress released Wednesday. "Moreover, a significant portion of spam is likely to be routed through foreign servers. For these reasons, it would be useful to have additional legislative authority."

FTC Chairman Tim Muris and at least three of his colleagues were scheduled to make two appearances on Capitol Hill on Wednesday to lobby for their proposal, in the morning before a House subcommittee, and in the afternoon before a Senate subcommittee. The hearings are part of the regular FTC reauthorization process, and Muris has suggested that ICPEA be inserted into the reauthorization bill.

The trade commission's joint statement says that the legislation, which takes aim at fraud in general and not just spam, "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."

Marc Rotenberg, director of the Electronic Privacy Information Center, criticizes ICPEA in his prepared testimony scheduled to be delivered at the same time before the two congressional committees. He agrees that the FTC should work more closely with its international counterparts, but says the current wording of the bill is far too broad.

"The legislation opens the door to abuse in that it creates new enforcement authority without corresponding safeguards," Rotenberg says in his prepared remarks. "The bill should be drafted in such a way so as to safeguard American values, including procedural fairness, privacy protection and open government."

If introduced as a formal proposal in Congress and signed into law, the May 21 draft of ICPEA would:

•  Let the FTC send a confidential demand to an ISP as part of an investigation and requiring the 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.

• Permit foreign police to obtain subscriber records and customer information from ISPs as part of an FTC investigation that is already under way.

• Grant the FTC the power to cooperate closely with foreign police who are investigating "fraudulent, deceptive, misleading or unfair commercial conduct."

• Immunize part of the FTC from the Freedom of Information Act by saying the FTC may choose not to disclose certain "material obtained from a foreign law enforcement agency."

•  Open the FBI's massive National Crime Information Center computer to FTC investigators. That computer came under fire in March after the Justice Department said it would no longer strive to maintain the database's accuracy and integrity.

The ICPEA comes as Congress is spending more time than ever before talking about spam. In April, Sen. Conrad Burns, R-Mont., introduced an antispam bill, and key House Republicans are backing a bill that promises to slap the worst bulk e-mailers with prison terms and millions of dollars in fines.

One Capitol Hill source who spoke on condition of anonymity said that Rep. Bill Tauzin, R-La.--the chairman of the House Energy and Commerce Committee--was surprised to see such a detailed plan from the FTC and may speak out against it Wednesday. Tauzin is backing one of the other antispam bills.