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.

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.

But senators didn’t question the FTC proposals, instead calling for the agency to get tougher on spam. Sen. Ron Wyden (D-Ore.) who has co-authored an antispam bill, pressured the FTC to commit to an aggressive campaign against spammers if a national antispam bill passed Congress.

“I’m of the view that bringing several high visibility, major enforcement actions … would send a very significant message of deterrence,” Wyden said. “What I want to do is send a message that the world is different.”

FTC Chairman Timothy Muris said the agency already prosecutes fraudulent spam, and it already is a high priority. But he said he wasn’t sure Wyden’s approach would significantly cut the amount of spam sent, instead stressing the FTC’s requests.

“I am an agnostic at best about the impact that we would have with (criminal) cases,” Muris said. “We just don’t know whether there are thousands of spammers or if it’s concentrated in a relatively small area.”

Swindle noted that the FTC has recently prosecuted several spammers. “We have had recently a number of relatively good hangings,” he said. “But the spam goes on.”

Swindle advocated a multifaceted approach to fighting spam, including legislation and the IT industry stepping up and providing more technological tools to consumers. He faulted technology companies for not creating those tools for consumers to control their in-boxes.

“We’ve got to have strong law enforcement, solid, narrowly defined laws that don’t do more damage than they do good … and we have to have technology improvements,” he said.

The FTC also asked Congress to allow it to investigate consumer fraud cases at telecommunications carriers, which have been exempt from FTC oversight. Commissioners argued that telecommunications carriers now compete with entertainment and technology companies that are subject to FTC investigations. But Lawrence Sarjeant, general counsel of the United States Telecom Association, argued that telecommunications companies are already regulated by the FCC and state public service commissions.