Citation Edit

Undertaking Spam, Spyware, and Fraud Enforcement With Enforcers beyond Borders Act (U.S. SAFE WEB Act), Pub. L. No. 109-455, 120 Stat. 3372 (2006) (codified in scattered sections of 15 U.S.C. and 12 U.S.C. §3412(e)).

Introduction Edit

In December 2006, Congress enacted the U.S. SAFE WEB Act. The Act was in response to the increasing threats facing U.S. consumers in the global marketplace from the proliferation of spam, spyware, telemarketing, and other cross-border frauds.

The Act enhances the ability of the Federal Trade Commission (FTC) to protect consumers from significant economic injury and other harm by giving the agency new or expanded powers in several key areas.

Overview Edit

The Act strengthened the FTC’s authority in five key areas: (1) information-sharing; (2) investigative assistance; (3) confidentiality; (4) enhanced investigative and litigating tools; and (5) enforcement relationships.

First, the Act authorizes the FTC, in appropriate consumer protection matters, to share compelled and confidential information with foreign law enforcement agencies. Before the Act was passed, the FTC could only share such information with other U.S. enforcers — not with foreign enforcers. Now, the FTC can exercise its discretion to share this information with its foreign law enforcement counterparts, as long as certain statutory factors are satisfied.

Second, the Act permits the FTC to provide investigative assistance in consumer protection matters to foreign law enforcement agencies.[1] If the FTC determines that the requested cooperation is consistent with the requirements in the Act, it can issue compulsory process for documents and testimony to an entity located in the United States and share the information with the foreign agency.[2] Before the Act was passed, the FTC could not provide such assistance to a foreign agency — even if the foreign agency’s investigation would ultimately benefit U.S. consumers. The Act also authorizes the FTC to initiate a proceeding under an existing federal statute to obtain testimony, documents, or things for use in foreign or international proceedings.[3]

Third, the Act enables the FTC to obtain information it would not otherwise receive from foreign entities that were previously concerned about public disclosure of their information. If the foreign agency or source requests confidential treatment as a condition of providing the information, the Act authorizes the FTC to protect the confidentiality of: (1) information that a foreign government agency provides to the FTC; or (2) any material reflecting a consumer complaint obtained from a foreign source.[4] In addition, the Act exempts from public disclosure consumer complaints submitted to a Commission reporting mechanism sponsored in part by other foreign agencies.[5] The Act includes a limited exception for disclosure when necessary to comply with a court order or Congressional request.[6]

Fourth, the Act provides enhanced investigative and litigating tools for both domestic and cross-border cases. For example, the Act authorizes the FTC to request a court order seeking delay of notice by the recipient of compulsory process to the investigative target when notice would otherwise cause an adverse result.[7]

In addition, the Act exempts certain private entities from liability for providing information voluntarily to the FTC.[8] With respect to cross-border litigation, the Act clarifies the scope of the FTC’s cross-border jurisdiction and remedial authority.[9] The Act also authorizes the FTC to assist the Attorney General in connection with litigation in foreign courts on relevant matters.[10]

Finally, the Act contains several provisions aimed at strengthening the FTC’s enforcement relationships with foreign agencies. For example, the Act allows the FTC to participate in staff exchanges with foreign agencies.[11] In addition, the Act permits the FTC, with the approval of the Department of State, to enter into binding international consumer protection agreements when such agreements are required as a condition for providing information or reciprocal assistance.[12]

FTC reporting requirements Edit

Section 14 of the Act required the FTC, within three years of the date of enactment, to submit a report to Congress describing its use of and experience with the authority granted by the Act, including:

  1. the number of cross-border complaints received by the FTC;
  2. the identification of and results of cooperation with foreign agencies with whom the FTC has shared non-public information under the Act;
  3. the number of times the FTC has issued compulsory process on behalf of foreign agencies;
  4. a list of international agreements or memoranda of understanding executed by the FTC that relate to the Act;
  5. the number of times the FTC has sought delay of notice under the Act and the number of times courts have granted a delay;
  6. a description of the types of information private entities have provided voluntarily pursuant to the Act and an analysis of whether the lack of a FOIA exemption for such material provided has hindered FTC investigations or enforcement proceedings; and
  7. a description of FTC litigation brought in foreign courts.

The FTC issued the required report in December 2009.[13] In that report, the FTC recommended that Congress remove the sunset provision[14] from the Act.

References Edit

  1. See 15 U.S.C. §46(j).
  2. Id.
  3. Id. §46(j)(2)(B). See also 28 U.S.C. §1782.
  4. 15 U.S.C. §57b-2(f)(2)(A)(i)-(ii).
  5. Id. §57b-2(f)(2)(A)(iii).
  6. See 15 U.S.C. §57b-2(f)(2)(B).
  7. See id. §57b-2a.
  8. See id. §57b-2b.
  9. See id. §45(a)(4).
  10. See id. §56(c)(1).
  11. See id. §57c-1.
  12. See id. §46(j)(4).
  13. FTC, The U.S. SAFE WEB Act: The First Three Years, A Report to Congress (Dec. 2009).
  14. The sunset provision provides that the Act will expire in 2013.

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