FTC asks for greater spam-fighting powers

The U.S. Federal Trade Commission (FTC) asked Congress Wednesday for greater powers in fighting spam, including the ability to require ISPs to turn over spam complaints about their customers.

FTC commissioners testified before two congressional committees Wednesday, asking to be allowed to issue "discovery subpoenas" to ISPs when investigating senders of unsolicited commercial e-mail. Several spam-fighting measures were among an FTC request for expanded abilities to fight cross-border fraud.

FTC commissioners championed the expanded powers as a way to prosecute spammers based outside the U.S., but other witnesses raised privacy and due process concerns about the FTC proposals.

"Spam has become the weapon of choice for those engaged in fraud and deception," said FTC Commissioner Orson Swindle, speaking at an afternoon hearing of the Senate Commerce Committee's Subcommittee on Competition, Foreign Commerce, and Infrastructure.

Among the spam measures the FTC requested were:

The power to require third-party sources of information in an investigation to keep FTC subpoenas confidential for a limited period. When targets of FTC investigations are notified of investigations, they often destroy documents, the FTC argued.

• The ability to create new rules against deceptive and abusive spam practices, including defining of what is a deceptive or abusive e-mail.
• Permission to share information from FTC investigations with counterparts in other countries. Currently, the agency is prohibiting from sharing certain investigative information with other countries.
• Clarification in law that a person who highjacks a customer's e-mail account is an unauthorized user, not a customer of an ISP entitled to protections under law.

Representatives of Verizon and the Electronic Privacy Information Center (EPIC) said they supported the FTC's ideas for fighting spam on the whole, but objected to specific pieces of the proposal.

Allowing the FTC to obtain the text of e-mail messages without prior notice to the customer would give the agency broad powers other law enforcement agencies don't enjoy, said Sarah Deutsch, vice president and associate general counsel of Verizon.

Verizon, which has fought subpoenas of the names of music downloaders from the Recording Industry Association of America, recommended the FTC get an order from a judge before receiving access to a person's e-mail.

"We would strongly urge amending the legislation to first require, if not a search warrant, at the very least an order issued by a judge before granting the FTC, alone of all governmental agencies, unprecedented new rights to obtain the contents of e-mail communications without prior notice to the subscriber," Deutsch said.

Marc Rotenberg, executive director of EPIC, raised similar objections, saying the FTC's proposed subpoena power could sacrifice U.S. privacy rights. "As general matter, we provide notice to the target of a subpoena so that the person who could become the subject of a criminal investigation might take the opportunity to oppose if it was appropriate and necessary," Rotenberg said.

The IDG News Service is a Network World affiliate.