FTC Seeks Spam-Squashing Powers

FTC Seeks Spam-Squashing Powers

ISPs, privacy groups raise privacy concern over some aspects of proposal.

Grant Gross, IDG News Service
Thursday, June 12, 2003

WASHINGTON -- The Federal Trade Commission is asking Congress for greater powers to fight spam, including authority to force 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 are included in an FTC request for expanded abilities to fight cross-border fraud.

FTC commissioners are championing the expanded powers as a way to prosecute spammers based outside the United States. Others at the hearing, however, raised privacy and due-process concerns about the FTC proposals.

FTC's Wish List
"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 weapons the FTC requests are:


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


The ability to create new rules against deceptive and abusive spam practices, including defining what is a deceptive or abusive e-mail.


Permission to share information from FTC investigations with counterparts in other countries. The agency is currently prohibited from sharing certain investigative information.


Clarification in law that a person who hijacks a customer's e-mail account is an unauthorized user, not an ISP customer entitled to legal protection.



Privacy Concerns Told
Representatives of Verizon and the Electronic Privacy Information Center said they support the FTC's ideas for fighting spam on the whole, but object to parts of the proposal.

Allowing the FTC to obtain the text of e-mail messages without prior customer notice would give the agency broad powers beyond those of other law enforcement agencies, said Sarah Deutsch, Verizon vice president and associate general counsel.

Verizon has fought subpoenas of the names of music downloaders from the Recording Industry Association of America. The ISP recommends the FTC get a judge's order to access 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, EPIC's executive director, raised similar objections.

"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.

Senate Support
But senators didn't question the FTC proposals, instead urging the agency to get tougher on spam. Senator Ron Wyden (D-Oregon), who co-authored an antispam bill, pushed the FTC to commit to an aggressive campaign against spammers if a national antispam bill passes 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. He wasn't sure Wyden's approach would significantly lessen spam sent, and instead stressed 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 advocates a multifaceted approach. He favors legislation and said the technology industry should give more spam-squashing tools to consumers. He also faulted technology companies for not creating ways 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," Swindle said.

Telecom Oversight Sought
The FTC is also asking Congress to let it investigate consumer fraud cases involving telecommunications carriers, which have been exempt from FTC oversight.

The Commissioners told the Senate subcommittee that telecommunications carriers now compete with entertainment and technology companies that are subject to FTC investigations. The FTC lacks jurisdiction over consumer fraud related to telecommunications services such as phone service, although it can prosecute ISPs for the same offenses.

But Lawrence Sarjeant, general counsel of the United States Telecom Association, argued that telecommunications companies are already regulated by the Federal Communications Commissions and state public service commissions.

Giving the FTC jurisdiction would cause confusion among telecom companies and the public, Sarjeant said.

"There is no absence of regulation--there is no regulatory void to fill," he testified. "Carriers would not know which agency to rely on for advice or which agency's compliance standards to follow."

Telephone service providers also are regulated by state public service commissions and state attorneys general, noted Verizon's Deutsch.

The FTC asked the Senate Commerce, Science, and Transportation Committee for similar powers about a year ago. The committee approved the request but the full Senate did not act on the proposal.

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