FTC spam legislation could hit P2P

Lawmakers on Capital Hill have proposed regulating porn on P2P networks. How they would actually enforce U.S. laws on international networks that are out of their jurisdiction is anybody’s guess.

Nevertheless, the issue arose during a hearing before a Senate Commerce subcommittee on June 18 where politicians expressed outrage over the increasing volume of spam. At the hearing, U.S. senators pushed for more aggressive prosecution of spammers and suggested that the FTC be granted broader Internet enforcement powers. They also suggested that the FTC investigate the presence of porn on the large P2P networks.

The mislabeling of porn seems to be a primary concern of lawmakers seeking to send the FTC against P2P sites. But FTC chairman Tim Muris testified to the committee that porn on P2P sites is usually labeled correctly and not misrepresented as children’s material to lure in unsuspecting users.

Another issue raised by lawmakers was the users of P2P sites could mistakenly expose their own private files to fellow file traders. This happens, of course, but usually only when users misconfigure their own systems. Usually it is pretty easy to tell P2P applications to share only files in a specific directory.

Lawmakers are clearly searching for reasons to extend the FTC’s reach in online regulation. The FTC is helping by submitting a proposal for expanded antispam and antifraud powers in part of the regular reauthorization proposal it sends to lawmakers. The FTC attorneys want the ability to scan FBI criminal databases and exchange information with foreign law enforcement agencies. The portion of the proposal related to spam reportedly goes even further than the pending House antispam bill, in that it would let consumers opt out of all commercial e-mail.

The part of the proposal that could impact P2P users suggests that the FTC be granted the power to send ISPs a confidential subpoena – called a civil investigative demand – that would force ISPs to turn over subscriber information without alerting the subjects of the request for up to half a year. Investigators want this power because targets often destroy documents when notified that an investigation is pending.

Turning the FTC into spam cops is a bad idea in itself. But granting another government agency the ability to collect data on U.S. citizens in secret, without the ability to review or challenge the information, is contrary to the interests of a free society. I for one am willing to take the time to delete spam or encounter porn on P2P networks rather than have my civil liberties violated.

Sen. Ron Wyden (D-Ore.) who sits on the committee sees it differently. He said the committee will likely vote soon on the FTC proposal and noted that that FTC has the power to punish “unfair or deceptive acts or practices in or affecting commerce.”

Privacy groups, such as the Electronic Privacy Information Center, noted that the proposed FTC legislation opened the door to abuse because it did not include safeguards such as procedural guidelines for disputing data, privacy protections and government transparency.

Verizon, which is fighting a demand by the entertainment industry to turn over the identity of an alleged file swapper, told reporters that the proposed FTC legislation was inconsistent with current privacy laws that do not permit criminal law enforcement agencies to obtain the same information without notice to the customer, he said.

Verizon is right on this issue. But it’s not clear that in their haste to attempt to regulate spam and P2P networks, lawmakers care about things like privacy, accountability and the due process afforded to citizens.