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[Senate Report 109-219]
[From the U.S. Government Publishing Office]

109th Congress                                                   Report
                                 SENATE
 2d Session                                                     109-219
_______________________________________________________________________

                                     

                                                       Calendar No. 372

UNDERTAKING SPAM, SPYWARE, AND FRAUD ENFORCEMENT WITH ENFORCERS BEYOND 
                          BORDERS ACT OF 2005

                               __________

                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                S. 1608

DATE deg.March 14, 2006.--Ordered to be printed

       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                       one hundred ninth congress
                             second session

                     TED STEVENS, Alaska, Chairman
                 DANIEL K. INOUYE, Hawaii, Co-Chairman
JOHN McCAIN, Arizona                 JOHN D. ROCKEFELLER IV, West 
CONRAD BURNS, Montana                    Virginia
TRENT LOTT, Mississippi              JOHN F. KERRY, Massachusetts
KAY BAILEY HUTCHISON, Texas          BYRON L. DORGAN, North Dakota
OLYMPIA J. SNOWE, Maine              BARBARA BOXER, California
GORDON H. SMITH, Oregon              BILL NELSON, Florida
JOHN ENSIGN, Nevada                  MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia               FRANK LAUTENBERG, New Jersey
JOHN E. SUNUNU, New Hampshire        E. BENJAMIN NELSON, Nebraska
JIM DeMINT, South Carolina           MARK PRYOR, Arkansas
DAVID VITTER, Louisiana
                    Lisa Sutherland, Staff Director
             Christine Drager Kurth, Deputy Staff Director
                      Ken Nahigian, Chief Counsel
     Margaret Cummisky, Democratic Staff Director and Chief Counsel
 Samuel Whitehorn, Democratic Deputy Staff Director and General Counsel

                                                       Calendar No. 372
109th Congress                                                   Report
                                 SENATE
 2d Session                                                     109-219

======================================================================

 
UNDERTAKING SPAM, SPYWARE, AND FRAUD ENFORCEMENT WITH ENFORCERS BEYOND 
                          BORDERS ACT OF 2005

                                _______
                                

                 March 14, 2006.--Ordered to be printed

                                _______
                                

       Mr. Stevens, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                              R E P O R T

                         [To accompany S. 1608]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill joint resolution deg. (S. 
1608) TITLE deg. to enhance Federal Trade Commission 
enforcement against illegal spam, spyware, cross-border fraud 
and deception, and for other purposes, having considered the 
same, reports favorably thereon without amendment with 
amendments with an amendment (in the nature of a 
substitute) deg. and recommends that the bill joint 
resolution (as amended) deg. do pass.

                          Purpose of the Bill

  S. 1608 would amend the Federal Trade Commission Act (FTCA) 
(15 U.S.C. 41 et seq.) to improve the Federal Trade 
Commission's (FTC or Commission) ability to provide more timely 
and effective international consumer protection. The bill also 
includes a provision authorizing the FTC to accept gifts and 
services under certain circumstances.

                          Background and Needs

  The FTC is an independent Federal agency established by 
statute in 1914 to protect American consumers. The Commission's 
mandate has two distinct provisions: first, to protect 
consumers from unfair or deceptive acts or practices in or 
affecting commerce, and second, to protect consumers from 
unfair methods of competition. The agency enforces at least 50 
statutes and is the only Federal agency with both consumer 
protection and competition jurisdiction in broad sectors of the 
economy.
  The Commission has proposed legislative changes to the FTCA 
seeking authorization to expand its authority under section 5 
of the FTCA to protect consumers from fraudulent and deceptive 
trade practices perpetrated outside the United States.
  The FTC reports that cross-border consumer complaints 
registered in the Consumer Sentinel consumer complaint database 
have risen from 11 percent of all complaints received in 2000, 
to 16 percent in 2004. The Commission attributes this increase 
primarily to the global proliferation of the Internet and 
improvements in telecommunications technologies. S. 1608 would 
improve the Commission's ability to protect consumers from 
illegal spyware, spam, cross-border fraud and deception, and 
other consumer protection law violations. \1\
---------------------------------------------------------------------------
    \1\ See FTC testimony from Chairman Majoras to United States Senate 
Committee on Commerce, Science, and Transportation, Subcommittee on 
Trade, Tourism, and Economic Development, October 5, 2005--in which the 
FTC states: ``The FTC's ability to pursue distributors of spyware, 
spam, and other Internet threats to consumers would be significantly 
improved if the Congress were to pass the U.S. SAFE WEB Act, introduced 
by Chairman Smith in the Senate as S. 1608. The Act makes it easier for 
the FTC to share information and otherwise cooperate with foreign law 
enforcement officials. The Internet knows no boundaries, and it is 
critical to improve the FTC's ability to work with the officials of 
other countries to prevent online conduct that undermines consumer 
confidence in the Internet as a medium of communication and commerce.''
---------------------------------------------------------------------------
  According to the FTC, the Commission's cross-border fraud 
language, which is contained in S. 1608, is the product of 
negotiations between the FTC and various other governmental 
entities including, among others, the Department of Justice 
(DOJ), the Department of State, the Federal Deposit Insurance 
Corporation (FDIC), and the Federal Reserve. These negotiations 
were designed to properly define the scope of the FTC's 
jurisdiction vis-a-vis the functions of those agencies.
  The bill also would allow the FTC to accept reimbursement for 
services undertaken on behalf of any domestic or foreign law 
enforcement agency. FTC staff members occasionally provide 
investigative or other services to a requesting law enforcement 
agency with no expectation that the Commission will be 
reimbursed for any expenses incurred. The FTC also may work in 
conjunction with staff of other law enforcement agencies to 
investigate or prosecute a matter. Thus, the Commission has 
requested authority to accept reimbursement if offered. Such 
authority would be useful in instances where expense-sharing 
arrangements have not been resolved in advance. The Securities 
Exchange Act of 1934 provides similar authority to the 
Securities and Exchange Commission.
  The bill also would authorize the FTC to accept gifts and 
services under certain circumstances. Occasionally, the 
Commission is offered gifts, donations, bequests, and volunteer 
services, but such receipt is prohibited by law. For example, 
volunteer services are prohibited, as is the acceptance of even 
a trade regulation publication that might be useful in the 
Commission's library. In order to legally accept such gifts or 
other items, the Commission would need to receive statutory 
authority. The Federal Communications Commission (FCC) and the 
Consumer Product Safety Commission (CPSC) have similar 
authority to accept gifts and services.

                         Summary of Provisions

  S. 1608 would amend the FTCA to authorize the FTC to: (1) 
share information involving cross-border fraud with foreign 
consumer protection agencies; (2) secure confidential 
information from those foreign consumer protection agencies; 
(3) take fraud-based legal action in foreign jurisdictions; (4) 
seek redress on behalf of foreign consumers victimized by 
United States-based wrongdoers; (5) make criminal referrals for 
cross-border criminal activity; (5) strengthen its relationship 
with foreign consumer protection agencies; (6) provide 
investigative and other services to a requesting law 
enforcement agency and accept payment of reimbursement from 
that agency for the Commission's involvement; and (7) receive 
gifts or other items that would be useful to the Commission as 
long as a conflict of interest is not created by such receipt.

                          Legislative History

  During the 108th Congress, the Competition, Foreign Commerce, 
and Infrastructure Subcommittee held a hearing on June 11, 
2003, to examine possible changes to the FTCA and discuss key 
issues before the FTC. Subsequent to the hearing, Senators 
McCain and Smith introduced the Federal Trade Commission 
Reauthorization Act of 2003 (S. 1234). On June 19, 2003, the 
Committee met in open Executive Session to consider an 
amendment in the nature of a substitute to S. 1234 offered by 
Senators McCain and Smith. The substitute amendment was 
adopted, and the bill was ordered by voice vote to be reported 
as amended.
  S. 1234 was placed on the Senate legislative calendar on 
August 26, 2003. On September 15, 2004, the Senate amended and 
passed S. 1234 by unanimous consent.
  On July 29, 2005, Senators Smith, McCain, Inouye, and Nelson 
of Florida introduced S. 1608, the Undertaking Spam, Spyware, 
and Fraud Enforcement With Enforcers Beyond Borders Act of 
2005. S. 1608 is virtually identical to S. 1234. The Trade, 
Tourism, and Economic Development Subcommittee held a hearing 
on October 5, 2005, to discuss the Commission's efforts to 
combat spyware, including its views on S. 1608.
  On December 15, 2005, the Committee met in open Executive 
Session and, by voice vote, ordered S. 1608 reported without 
amendment.

                            Estimated Costs

  In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

                                                  January 31, 2006.
Hon. Ted Stevens,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1608, the 
Undertaking Spam, Spyware, and Fraud Enforcement With Enforcers 
Beyond Borders Act of 2005.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Melissa Z. 
Petersen.
            Sincerely,
                                          Donald B. Marron,
                                                   Acting Director.
    Enclosure.

S. 1608--Undertaking Spam, Spyware, and Fraud Enforcement With 
        Enforcers Beyond Borders Act of 2005

    Summary: S. 1608 would provide new administrative tools to 
the Federal Trade Commission (FTC) to support enforcement of 
federal laws related to unfair and deceptive trade practices. 
The bill would enhance the FTC's ability to pursue violations 
that affect domestic commerce but are committed outside the 
United States--such as the use of computer software (known as 
spyware) to collect personal information without a user's 
consent and the use of unsolicited email (known as spam) that 
is deceptive.
    CBO estimates that implementing S. 1608 would cost $1 
million in 2006 and $9 million over the 2006-2011 period, 
assuming appropriation of the amounts specified and estimated 
to be necessary. Enacting the bill would not have a significant 
effect on direct spending or revenues.
    S. 1608 contains intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA), but CBO estimates that 
costs, if any, would be small and would not exceed the 
threshold established by UMRA for intergovernmental mandates 
($64 million in 2006, adjusted annually for inflation).
    S. 1608 would impose a private-sector mandate, as defined 
in UMRA, by limiting the ability of certain third parties to 
sue. CBO expects that the direct cost of the mandate would fall 
well below the annual threshold established by UMRA for 
private-sector mandates ($128 million in 2006, adjusted 
annually for inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 1608 is shown in the following table. 
The cost of this legislation falls within budget function 370 
(commerce and housing credit).

----------------------------------------------------------------------------------------------------------------
                                                                  By fiscal year, in millions of dollars--
                                                           -----------------------------------------------------
                                                              2006     2007     2008     2009     2010     2011
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level.............................        1        1        1        2        2        2
Estimated Outlays.........................................        1        1        1        2        2        2
----------------------------------------------------------------------------------------------------------------

    Basis of Estimate: For this estimate, CBO assumes that the 
specified and estimated amounts needed to implement S. 1608 
will be appropriated for each year and that outlays will follow 
historical patterns for similar programs.

Spending subject to appropriation

    Implementing S. 1608 would increase spending by the FTC for 
enforcing laws related to unfair and deceptive trade practices, 
subject to the availability of appropriated funds. S. 1608 also 
would authorize the appropriation of $100,000 a year for 
collaborating with foreign governments and participating in 
multinational organizations related to law enforcement. Based 
on information provided by the FTC, CBO estimates that 
implementing the bill would cost about $1 million in 2006 and 
about $9 million over the 2006-2011 period, assuming 
appropriation of the amounts specified and estimated to be 
necessary.
    The bill would allow the FTC to accept reimbursements for 
expenses made on behalf of foreign or domestic law enforcement 
agencies. Such reimbursements would be recorded as an offset to 
the agency's discretionary spending. Based on information 
provided by the FTC, CBO estimates that any reimbursements 
would be minimal and would not have a significant effect on 
spending subject to appropriation.

Revenues and direct spending

    Enacting S. 1608 could increase federal revenues and direct 
spending as a result of additional civil and criminal penalties 
assessed for violations of laws relating to unfair and 
deceptive practices in commerce. Collections of civil penalties 
are recorded in the budget as revenues. Collections of criminal 
penalties are recorded in the budget as revenues, deposited in 
the Crime Victims Fund, and later spent. CBO estimates, 
however, that any additional revenues and direct spending that 
would result from enacting the bill would not be significant 
because of the relatively small number of cases likely to be 
involved.
    Finally, a provision in S. 1608 would authorize the FTC to 
accept and use donations of cash, property, and other gifts. 
Monetary gifts are classified in the budget as revenues, and 
spending of such sums would constitute direct spending. Based 
on information provided by the FTC, CBO estimates that any 
collections and subsequent spending would be minimal, and that 
enacting this provision would not have a significant effect on 
revenues or direct spending.
    Estimated impact on state, local, and tribal governments: 
Sections 7 and 8 of S. 1608 would authorize the FTC to request 
that a judge order the recipient of a summons, subpoena, or 
other compulsory process to delay giving notice to anyone that 
they have been required to appear as a witness before, or to 
produce documents in, an FTC proceeding. The order could be 
issued, notwithstanding any state or local laws or regulations, 
if there is reason to believe that notification would cause 
certain adverse results. Further, the recipient would not be 
liable under any state or local laws or regulations for 
disclosing information or for failure to provide notice. The 
bill also would protect certain entities that voluntarily 
provide specified material to the FTC from liability under any 
state or local law or regulation that precludes disclosure of 
information or requires notification to the interested third 
party.
    To the extent that state and local governments have laws 
that contradict these provisions, the legislation would preempt 
those laws and thereby impose mandates under UMRA. CBO 
estimates that the cost of complying with these mandates would 
be minimal and would not exceed the threshold established in 
UMRA ($64 million in 2006, adjusted for inflation).
    Estimated impact on the private sector: S. 1608 would 
impose a private-sector mandate, as defined in UMRA, by 
limiting the ability of certain third parties to sue. CBO 
expects that the direct cost of the mandate would fall well 
below the annual threshold established by UMRA for private-
sector mandates ($128 million in 2006, adjusted annually for 
inflation).
    By exempting from liability entities that voluntarily 
provide information about third parties to the Federal Trade 
Commission, S. 1608 would limit the ability of those third 
parties to sue for the disclosure or for failure to provide 
notice of disclosure. Such a limitation would constitute a 
private-sector mandate under UMRA. The direct cost of the 
mandate would be the forgone net value of settlements and 
damage awards. According to the FTC, no such third-party 
lawsuits have been filed, and they expect that it is unlikely 
there will be any new cases filed under current law. 
Consequently, CBO expects that costs to the private sector 
would be small relative to UMRA's threshold.
    Estimate prepared by: Federal Costs: Melissa Z. Petersen. 
Impact on State, Local, and Tribal Governments: Sarah Puro. 
Impact on the Private Sector: Paige Piper/Bach.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Statement

  In compliance with subsection (b)(2) of paragraph 11 
of rule XXVI of the Standing Rules of the Senate, the Committee 
states that, in its opinion, it is necessary to dispense with 
the requirements of paragraph (1) of that subsection in order 
to expedite the business of the Senate. deg.
  Because S. 1608 does not create any new programs, the 
legislation will have no additional regulatory impact, and will 
result in no additional reporting requirements. The legislation 
will have no further effect on the number or types of 
individuals and businesses regulated, the economic impact of 
such regulation, the personal privacy of affected individuals, 
or the paperwork required from such individuals and businesses.

                      Section-by-Section Analysis

Section 1. Short title; findings; purpose

  This section describes Congress' findings that cross-border 
fraud is a growing international problem that affects American 
consumers and businesses. The proliferation of Internet and 
telecommunications technologies has accentuated the problem of 
such fraud. Increasingly, foreign consumers are affected. The 
Commission's ability to obtain effective consumer fraud relief 
is impeded by its limited authority. Improving the Commission's 
ability to share information with its foreign counterparts is 
expected to allow for more timely and effective consumer fraud 
relief.

Section 2. Foreign law enforcement agency defined

  This section would amend section 4 of the FTCA to include the 
definition of ``foreign law enforcement agency.''

Section 3. Availability of remedies

  This section would amend section 5(a) of the FTCA by adding 
to the term ``unfair or deceptive acts or practices'' involving 
foreign commerce to include those that cause or are likely to 
cause injury within the United States or involve material 
conduct within the United States.
  This section also would make all remedies available to the 
Commission with respect to unfair and deceptive acts involving 
foreign commerce that may cause injury within the United 
States.

Section 4. Powers of the Commission

  This section would amend Section 6(f) of the FTCA by 
inserting Subsection (j) that would add investigative 
assistance for foreign law enforcement agencies, including the 
criteria for international agreements determining such 
assistance. This new subsection also would provide that the 
FTC, with approval from the Secretary of State, may negotiate 
and conclude an international agreement in order to obtain 
foreign assistance. The authority granted to the FTC in this 
subsection would not apply to financial institutions, such as 
banks, savings and loan institutions, or federal credit unions.
  When the Commission receives a request for assistance from a 
foreign law enforcement agency, the Commission would be 
required to ensure that it agrees to such a request only when 
the request relates to a provision of foreign law that 
prohibits a fraudulent or deceptive commercial practice or 
other practice that is ``substantially similar'' to a practice 
that is prohibited by a law administered by the Commission. 
Examples of foreign laws that do not meet the ``substantially 
similar'' requirement include a foreign restriction against 
non-misleading and substantiated comparative advertising, or a 
restriction on freedom of expression in a foreign law that 
would be protected expression under the First Amendment of the 
U.S. Constitution.
  This section also would prohibit the Commission from 
providing investigative assistance to a foreign law enforcement 
agency from a foreign state that has supported acts of 
international terrorism.
  Subsection (k) relates to the referral of evidence for 
criminal proceedings, specifying that the FTC would be required 
to share domestic and foreign evidence with the Attorney 
General that may be relevant to a violation of Federal criminal 
law.
  Subsection (l) would allow for expenditures for cooperative 
arrangements for operating expenses and other costs of 
bilateral and multilateral law enforcement groups conducting 
activities of interest to the FTC.
  This section would authorize $100,000 per fiscal year to the 
FTC for operating costs and other costs of bilateral and 
multilateral cooperative law enforcement agencies.

Section 5. Representation in foreign litigation

  This section would amend section 16 of the FTCA to authorize 
the FTC to retain foreign counsel to assist the Department of 
Justice's Office of Foreign Litigation in pursuing cases in 
foreign jurisdictions.

Section 6. Sharing information with foreign law enforcement agencies

  This section would amend section 21(b)(6) of the FTCA to 
allow the FTC to share information with other agencies and 
expand existing authority to share compelled or confidential 
information with foreign law enforcers in consumer protection 
cases. Currently, information that is confidential or that has 
been compelled cannot be shared with foreign law enforcement 
agencies without the consent of the entity submitting the 
information. This section exempts the FTC from public 
disclosure of material received in the course of an 
investigation obtained from either domestic or foreign sources.
  The Committee expects that the Commission will use discretion 
when determining whether, when, and how to agree to a foreign 
law enforcement agency's request for assistance. In particular, 
the Committee underscores its belief that requests to 
investigate consumer protection-related violations affecting 
U.S. residents are the most appropriate types of requests for 
providing assistance to foreign law enforcement agencies.
  Before granting a request to provide investigative assistance 
to a foreign law enforcement agency, the FTC would need to be 
satisfied that the requesting entity is a legitimate law 
enforcement agency as defined in the Act, and that the request 
relates to an appropriate investigation or enforcement 
proceeding of that agency. Before the FTC can provide 
assistance, the foreign law enforcement agency must make a 
written request for assistance and must include a statement 
that it is investigating or enforcing against possible 
fraudulent or deceptive commercial practices or violations of a 
law substantially similar to a consumer protection law enforced 
by the Commission. The Committee believes that the Commission 
should require that the foreign law enforcement agency provide 
more information when the Commission has not worked with the 
foreign law enforcement agency before or when the foreign legal 
prohibition at issue is complex.

Section 7. Confidentiality; delayed notice of process

  This section would create a new section 21A in the FTCA to 
authorize the FTC to provide delayed notice to suspected 
perpetrators of fraud (currently entitled to such notice under 
the Right to Financial Privacy Act (RFPA) (12 U.S. C. 3401 et 
seq.)) that the FTC is requesting information about them from 
financial institutions.
  Under this section, the FTC would be able to apply for an ex 
parte application in the event neither notification nor delayed 
notification is required under the RFPA. All judicial 
proceedings initiated by the FTC under the RFPA may be brought 
to the United States District Court and be held in camera. This 
section would not apply to antitrust investigations or 
proceedings.

Section 8. Protection for voluntary provision of information

  This section would create a new section 21B in the FTCA to 
authorize the FTC to delay notice to individuals being 
investigated by allowing third parties to keep Civil 
Investigative Demands (CIDs) confidential notwithstanding 
Federal or State law. The FTC often obtains information when 
investigating fraud by issuing CIDs to third parties. This 
section also protects entities from liability under applicable 
Federal and State laws for voluntary disclosures they make to 
the FTC concerning consumer fraud, or concerning recovery of 
assets for consumer redress.

Section 9. Staff exchanges

  This section would create a new section 25A of the FTCA to 
authorize the FTC to participate in foreign staff exchange 
programs, and to make and accept full or partial reimbursement 
in such exchanges.

Section 10. Information sharing with financial regulators

  This section amends Section 1112(e) of the RFPA to allow the 
FTC to share appropriate information with financial and market 
regulators.

Section 11. Authority to accept reimbursements, gifts, and voluntary 
        and uncompensated services

  This section would amend the FTCA by redesignating section 26 
as section 28 and by creating a new section 26 and 27 that 
would authorize the FTC to accept reimbursement from other 
agencies for assistance provided in investigations or 
otherwise, and accept gifts, donations and voluntary services 
consistent with ethical guidelines, respectively.

Section 12. Preservation of existing authority

  This section states that the authority provided in this Act 
would add to the authority currently vested in the FTC, and 
would not replace any existing authorities.

Section 13. Report

  This section would require that, within three years of the 
enactment date, the FTC shall transmit a report to Congress 
describing its experience with the authority granted by this 
Act, along with any recommendations for additional legislation.

                        Changes in Existing Law

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill, 
as reported, are shown as follows (existing law proposed to be 
omitted is enclosed in black brackets, new material is printed 
in italic, existing law in which no change is proposed is shown 
in roman):

                     FINANCIAL PRIVACY ACT OF 1978

SEC. 1112. USE OF INFORMATION.

                            [12 U.S.C. 3412]

  (a) Transfer of Financial Records to Other Agencies or 
Departments; Certification.--Financial records originally 
obtained pursuant to this title shall not be transferred to 
another agency or department unless the transferring agency or 
department certifies in writing that there is reason to believe 
that the records are relevant to a legitimate law enforcement 
inquiry, or intelligence or counterintelligence activity, 
investigation or analysis related to international terrorism 
within the jurisdiction of the receiving agency or department.
  (b) Mailing of Copy of Certification and Notice to 
Customer.--When financial records subject to this title are 
transferred pursuant to subsection (a), the transferring agency 
or department shall, within fourteen days, send to the customer 
a copy of the certification made pursuant to subsection (a) and 
the following notice, which shall state the nature of the law 
enforcement inquiry with reasonable specificity: ``Copies of, 
or information contained in, your financial records lawfully in 
possession of ---------- have been furnished to ---------- 
pursuant to the Right of Financial Privacy Act of 1978 for the 
following purpose: ----------. If you believe that this 
transfer has not been made to further a legitimate law 
enforcement inquiry, you may have legal rights under the 
Financial Privacy Act of 1978 or the Privacy Act of 1974.''.
  (c) Court-ordered Delays in Mailing.--Notwithstanding 
subsection (b), notice to the customer may be delayed if the 
transferring agency or department has obtained a court order 
delaying notice pursuant to section 1109(a) and (b) and that 
order is still in effect, or if the receiving agency or 
department obtains a court order authorizing a delay in notice 
pursuant to section 1109(a) and (b). Upon the expiration of any 
such period of delay, the transferring agency or department 
shall serve to the customer the notice specified in subsection 
(b) above and the agency or department that obtained the court 
order authorizing a delay in notice pursuant to section 1109(a) 
and (b) shall serve to the customer the notice specified in 
section 1109(b).
  (d) Exchanges of Examination Reports by Supervisory Agencies; 
Transfer of Financial Records to Defend Customer 
Action;Withholding of Information.--Nothing in this title 
prohibits any supervisory agency from exchanging examination reports or 
other information with another supervisory agency. Nothing in this 
title prohibits the transfer of a customer's financial records needed 
by counsel for a Government authority to defend an action brought by 
the customer. Nothing in this title shall authorize the withholding of 
information by any officer or employee of a supervisory agency from a 
duly authorized committee or subcommittee of the Congress.
  (e) Federal Financial Institutions Examination Council 
Supervisory Agencies; Authorization of Exchange of Financial 
Records or Other Information.--Notwithstanding section 1101(6) 
or any other provision of law, the exchange of financial 
records, examination reports or other information with respect 
to a financial institution, holding company, or any subsidiary 
of a depository institution or holding company, among and 
between the five member supervisory agencies of the Federal 
Financial Institutions Examination Council, the Securities and 
Exchange Commission, the Federal Trade Commission, and the 
Commodity Futures Trading Commission is permitted.
  (f) Transfer to Attorney General.--
          (1) In general.--Nothing in this title shall apply 
        when financial records obtained by an agency or 
        department of the United States are disclosed or 
        transferred to the Attorney General or the Secretary of 
        the Treasury upon the certification by a supervisory 
        level official of the transferring agency or department 
        that--
                  (A) there is reason to believe that the 
                records may be relevant to a violation of 
                Federal criminal law; and
                  (B) the records were obtained in the exercise 
                of the agency's or department's supervisory or 
                regulatory functions.
          (2) Limitation on use.--Records so transferred shall 
        be used only for criminal investigative or prosecutive 
        purposes, for civil actions under section 951 of the 
        Financial Institutions Reform, Recovery, and 
        Enforcement Act of 1989, or for forfeiture under 
        sections 981 or 982 of title 18, United States Code, by 
        the Department of Justice and only for criminal 
        investigative purposes relating to money laundering and 
        other financial crimes by the Department of the 
        Treasury and shall, upon completion of the 
        investigation or prosecution (including any appeal), be 
        returned only to the transferring agency or department. 
        No agency or department so transferring such records 
        shall be deemed to have waived any privilege applicable 
        to those records under law.

                      FEDERAL TRADE COMMISSION ACT

SEC. 4. DEFINITIONS.

                             [15 U.S.C. 44]

  The words defined in this section shall have the following 
meaning when found in this Act, to wit: ``Commerce'' means 
commerce among the several States or with foreign nations, or 
in any Territory of the United States or in the District of 
Columbia, or between any such Territory and another, or between 
any such Territory and any State or foreign nation, or between 
the District of Columbia and any State or Territory or foreign 
nation. ``Corporation'' shall be deemed to include any company, 
trust, so-called Massachusetts trust, or association, 
incorporated or unincorporated, which is organized to carry on 
business for its own profit or that of its members, and has 
shares of capital or capital stock or certificates of interest, 
and any company, trust, so-called Massachusetts trust, or 
association, incorporated or unincorporated, without shares of 
capital or capital stock or certificates of interest, except 
partnerships, which is organized to carry on business for its 
own profit or that of its members. ``Documentary evidence'' 
includes all documents, papers, correspondence, books of 
account, and financial and corporate records. ``Acts to 
regulate commerce'' means the Act entitled ``An Act to regulate 
commerce,'' approved February 14, 1887, and all Acts amendatory 
thereof and supplementary thereto and the Communications Act of 
1934 and all Acts amendatory thereof and supplementary thereto. 
``Antitrust Acts'' means the Act entitled ``An Act to protect 
trade and commerce against unlawful restraints and 
monopolies,'' approved July 2, 1890; also sections 73 to 76 
inclusive, of an Act entitled ``An Act to reduce taxation, to 
provide revenue for the Government, and for other purposes,'' 
approved August 27, 1894; also the Act entitled ``An Act to 
amend sections 73 and 76, of the Act of August 27, 1894, 
entitled 'An Act to reduce taxation, to provide revenue for the 
Government, and for other purposes,''' approved February 12, 
1913; and also the Act entitled ``An Act to supplement existing 
laws against unlawful restraints and monopolies, and for other 
purposes,'' approved October 15, 1914. ``Banks'' means the 
types of banks and other financial institutions referred to in 
section 18(f)(2).
  ``Foreign law enforcement agency'' means--
          (1) any agency or judicial authority of a foreign 
        government, including a foreign state, a political 
        subdivision of a foreign state, or a multinational 
        organization constituted by and comprised of foreign 
        states, that is vested with law enforcement or 
        investigative authority in civil, criminal, or 
        administrative matters; and
          (2) any multinational organization, to the extent 
        that it is acting on behalf of an entity described in 
        paragraph (1).

SEC. 5. UNFAIR METHODS OF COMPETITION UNLAWFUL; PREVENTION BY 
                    COMMISSION.

                             [15 U.S.C. 45]

  (a) Declaration of Unlawfulness; Power to Prohibit Unfair 
Practices; Inapplicability to Foreign Trade.--
          (1) Unfair methods of competition in or affecting 
        commerce, and unfair or deceptive acts or practices in 
        or affecting commerce, are hereby declared unlawful.
          (2) The Commission is hereby empowered and directed 
        to prevent persons, partnerships, or corporations, 
        except banks, savings and loan institutions described 
        in section 18(f)(3), Federal credit unions described in 
        section 18(f)(4), common carriers subject to the Acts 
        to regulate commerce, air carriers and foreign air 
        carriers subject to the Federal Aviation Act of 1958, 
        and persons, partnerships, or corporations insofar as 
        they are subject to the Packers and Stockyards Act, 
        1921, as amended,except as provided in section 406(b) 
of said Act, from using unfair methods of competition in or affecting 
commerce and unfair or deceptive acts or practices in or affecting 
commerce.
          (3) This subsection shall not apply to unfair methods 
        of competition involving commerce with foreign nations 
        (other than import commerce) unless--
                  (A) such methods of competition have a 
                direct, substantial, and reasonably foreseeable 
                effect--
                          (i) on commerce which is not commerce 
                        with foreign nations, or on import 
                        commerce with foreign nations; or
                          (ii) on export commerce with foreign 
                        nations, of a person engaged in such 
                        commerce in the United States; and
                  (B) such effect gives rise to a claim under 
                the provisions of this subsection, other than 
                this paragraph. If this subsection applies to 
                such methods of competition only because of the 
                operation of subparagraph (A)(ii), this 
                subsection shall apply to such conduct only for 
                injury to export business in the United States.
          (4)(A) For purposes of subsection (a), the term 
        ``unfair or deceptive acts or practices'' includes such 
        acts or practices involving foreign commerce that--
                  (i) cause or are likely to cause reasonably 
                foreseeable injury within the United States; or
                  (ii) involve material conduct occurring 
                within the United States.
          (B) All remedies available to the Commission with 
        respect to unfair and deceptive acts or practices shall 
        be available for acts and practices described in this 
        paragraph, including restitution to domestic or foreign 
        victims.
  (b) Proceeding by Commission; Modifying and Setting Aside 
Orders.--Whenever the Commission shall have reason to believe 
that any such person, partnership, or corporation has been or 
is using any unfair method of competition or unfair or 
deceptive act or practice in or affecting commerce, and if it 
shall appear to the Commission that a proceeding by it in 
respect thereof would be to the interest of the public, it 
shall issue and serve upon such person, partnership, or 
corporation a complaint stating its charges in that respect and 
containing a notice of a hearing upon a day and at a place 
therein fixed at least thirty days after the service of said 
complaint. The person, partnership, or corporation so 
complained of shall have the right to appear at the place and 
time so fixed and show cause why an order should not be entered 
by the Commission requiring such person, partnership, or 
corporation to cease and desist from the violation of the law 
so charged in said complaint. Any person, partnership, or 
corporation may make application, and upon good cause shown may 
be allowed by the Commission to intervene and appear in said 
proceeding by counsel or in person. The testimony in any such 
proceeding shall be reduced to writing and filed in the office 
of the Commission. If upon such hearing the Commission shall be 
of the opinion that the method of competition or the act or 
practice in question is prohibited by this Act, it shall make a 
report in writing in which it shall state its findings as to 
the facts and shall issue and cause to be served on such 
person, partnership, or corporation an order requiring such 
person, partnership, or corporation to cease and desist from 
using such method of competition or such act or practice. Until 
the expiration of the time allowed for filing a petition for 
review, if no such petition has been duly filed within such 
time, or, if a petition for review has been filed within such 
time then until the record in the proceeding has been filed in 
a court of appeals of the United States, as hereinafter 
provided, the Commission may at any time, upon such notice and 
in such manner as it shall deem proper, modify or set aside, in 
whole or in part, any report or any order made or issued by it 
under this section. After the expiration of the time allowed 
for filing a petition for review, if no such petition has been 
duly filed within such time, the Commission may at any time, 
after notice and opportunity for hearing, reopen and alter, 
modify, or set aside, in whole or in part, any report or order 
made or issued by it under this section, whenever in the 
opinion of the Commission conditions of fact or of law have so 
changed as to require such action or if the public interest 
shall so require, except that (1) the said person, partnership, 
or corporation may, within sixty days after the service upon 
him or it of said report or order entered after such a 
reopening, obtain a review thereof in the appropriate court of 
appeals of the United States, in the manner provided in 
subsection (c) of this section; and (2) in the case of an 
order, the Commission shall reopen any such order to consider 
whether such order (including any affirmative relief provision 
contained in such order) should be altered, modified, or set 
aside, in whole or in part, if the person, partnership, or 
corporation involved files a request with the Commission which 
makes a satisfactory showing that changed conditions of law or 
fact require such order to be altered, modified, or set aside, 
in whole or in part. The Commission shall determine whether to 
alter, modify, or set aside any order of the Commission in 
response to a request made by a person, partnership, or 
corporation under paragraph (2) not later than 120 days after 
the date of the filing of such request.
  (c) Review of Order; Rehearing.--Any person, partnership, or 
corporation required by an order of the Commission to cease and 
desist from using any method of competition or act or practice 
may obtain a review of such order in the court of appeals of 
the United States, within any circuit where the method of 
competition or the act or practice in question was used or 
where such person, partnership, or corporation resides or 
carries on business, by filing in the court, within sixty days 
from the date of the service of such order, a written petition 
praying that the order of the Commission be set aside. A copy 
of such petition shall be forthwith transmitted by the clerk of 
the court to the Commission, and thereupon the Commission shall 
file in the court the record in the proceeding, as provided in 
section 2112 of title 28, United States Code. Upon such filing 
of the petition the court shall have jurisdiction of the 
proceeding and of the question determined therein concurrently 
with the Commission until the filing of the record and shall 
have power to make and enter a decree affirming, modifying, or 
setting aside the order of the Commission, and enforcing the 
same to the extent that such order is affirmed and to issue 
such writs as are ancillary to its 
jurisdiction or are necessary in its judgment to prevent injury 
to the public or to competitors pendente lite. The findings of 
the Commission as to the facts, if supported by evidence, shall 
be conclusive. To the extent that the order of the Commission 
is affirmed, the court shall thereupon issue its own order 
commanding obedience to the terms of such order of the 
Commission. If either party shall apply to the court for leave 
to adduce additional evidence, and shall show to the 
satisfaction of the court that such additional evidence is 
material and that there were reasonable grounds for the failure 
to adduce such evidence in the proceeding before the 
Commission, the court may order such additional evidence to be 
taken before the Commission and to be adduced upon the hearing 
in such manner and upon such terms and conditions as to the 
court may seem proper. The Commission may modify its findings 
as to the facts, or make new findings, by reason of the 
additional evidence so taken, and it shall file such modified 
or new findings, which, if supported by evidence, shall be 
conclusive, and its recommendation, if any, for the 
modification or setting aside of its original order, with the 
return of such additional evidence. The judgment and decree of 
the court shall be final, except that the same shall be subject 
to review by the Supreme Court upon certiorari, as provided in 
section 240 of the Judicial Code.
  (d) Jurisdiction of Court.--Upon the filing of the record 
with it the jurisdiction of the court of appeals of the United 
States to affirm, enforce, modify, or set aside orders of the 
Commission shall be exclusive.
  (e) Extension from Liability.--No order of the Commission or 
judgment of court to enforce the same shall in anywise relieve 
or absolve any person, partnership, or corporation from any 
liability under the Antitrust Acts.
  (f) Service of Complaints, Orders and Other Processes; 
return.--Complaints, orders, and other processes of the 
Commission under this section may be served by anyone duly 
authorized by the Commission, either (a) by delivering a copy 
thereof to the person to be served, or to a member of the 
partnership to be served, or the president, secretary, or other 
executive officer or a director of the corporation to be 
served; or (b) by leaving a copy thereof at the residence or 
the principal office or place of business of such person, 
partnership, or corporation; or (c) by mailing a copy thereof 
by registered mail or by certified mail addressed to such 
person, partnership, or corporation at his or its residence or 
principal office or place of business. The verified return by 
the person so serving said complaint, order, or other process 
setting forth the manner of said service shall be proof of the 
same, and the return post office receipt for said complaint, 
order, or other process mailed by registered mail or by 
certified mail as aforesaid shall be proof of the service of 
the same.
  (g) Finality of Order.--An order of the Commission to cease 
and desist shall become final--
          (1) Upon the expiration of the time allowed for 
        filing a petition for review, if no such petition has 
        been duly filed within such time; but the Commission 
        may thereafter modify or set aside its order to the 
        extent provided in the last sentence of subsection (b).
          (2) Except as to any order provision subject to 
        paragraph (4), upon the sixtieth day after such order 
        is served, if a petition for review has been duly 
        filed; except that any such order may be stayed, in 
        whole or in part and subject to such conditions as may 
        be appropriate, by--
                  (A) the Commission;
                  (B) an appropriate court of appeals of the 
                United States, if (i) a petition for review of 
                such order is pending in such court, and (ii) 
                an application for such a stay was previously 
                submitted to the Commission and the Commission, 
                within the 30-day period beginning on the date 
                the application was received by the Commission, 
                either denied the application or did not grant 
                or deny the application; or
                  (C) the Supreme Court, if an applicable 
                petition for certiorari is pending.
          (3) For purposes of subsection (m)(1)(B) and of 
        section 19(a)(2), if a petition for review of the order 
        of the Commission has been filed--
                  (A) upon the expiration of the time allowed 
                for filing a petition for certiorari, if the 
                order of the Commission has been affirmed or 
                the petition for review has been dismissed by 
                the court of appeals and no petition for 
                certiorari has been duly filed;
                  (B) upon the denial of a petition for 
                certiorari, if the order of the Commission has 
                been affirmed or the petition for review has 
                been dismissed by the court of appeals; or
                  (C) upon the expiration of 30 days from the 
                date of issuance of a mandate of the Supreme 
                Court directing that the order of the 
                Commission be affirmed or the petition for 
                review be dismissed.
          (4) In the case of an order provision requiring a 
        person, partnership, or corporation to divest itself of 
        stock, other share capital, or assets, if a petition 
        for review of such order of the Commission has been 
        filed--
                  (A) upon the expiration of the time allowed 
                for filing a petition for certiorari, if the 
                order of the Commission has been affirmed or 
                the petition for review has been dismissed by 
                the court of appeals and no petition for 
                certiorari has been duly filed;
                  (B) upon the denial of a petition for 
                certiorari, if the order of the Commission has 
                been affirmed or the petition for review has 
                been dismissed by the court of appeals; or
                  (C) upon the expiration of 30 days from the 
                date of issuance of a mandate of the Supreme 
                Court directing that the order of the 
                Commission be affirmed or the petition for 
                review be dismissed.
  (h) Modification or Setting Aside of Order by Supreme 
Court.--If the Supreme Court directs that the order of the 
Commission be modified or set aside, the order of the 
Commission rendered in accordance with the mandate of the 
Supreme Court shall become final upon the expiration of thirty 
days from the time it was rendered, unless within such thirty 
days either party has instituted proceedings to have such order 
corrected to accord with themandate, in which event the order 
of the Commission shall become final when so corrected.
  (i) Modification or Setting Aside of Order by Court of 
Appeals.--If the order of the Commission is modified or set 
aside by the court of appeals, and if (1) the time allowed for 
filing a petition for certiorari has expired and no such 
petition has been duly filed, or (2) the petition for 
certiorari has been denied, or (3) the decision of the court 
has been affirmed by the Supreme Court, then the order of the 
Commission rendered in accordance with the mandate of the court 
of appeals shall become final on the expiration of thirty days 
from the time such order of the Commission was rendered, unless 
within such thirty days either party has instituted proceedings 
to have such order corrected so that it will accord with the 
mandate, in which event the order of the Commission shall 
become final when so corrected.
  (j) Rehearing Upon Order or Remand.--If the Supreme Court 
orders a rehearing; or if the case is remanded by the court of 
appeals to the Commission for a rehearing, and if (1) the time 
allowed for filing a petition for certiorari has expired, and 
no such petition has been duly filed, or (2) the petition for 
certiorari has been denied, or (3) the decision of the court 
has been affirmed by the Supreme Court, then the order of the 
Commission rendered upon such rehearing shall become final in 
the same manner as though no prior order of the Commission had 
been rendered.
  (k) ``Mandate'' Defined.--As used in this section the term 
``mandate,'' in case a mandate has been recalled prior to the 
expiration of thirty days from the date of issuance thereof, 
means the final mandate.
  (l) Penalty for Violation of Order; Injunctions and Other 
Appropriate Equitable Relief.--Any person, partnership, or 
corporation who violates an order of the Commission after it 
has become final, and while such order is in effect, shall 
forfeit and pay to the United States a civil penalty of not 
more than $10,000 for each violation, which shall accrue to the 
United States and may be recovered in a civil action brought by 
the Attorney General of the United States. Each separate 
violation of such an order shall be a separate offense, except 
that in the case of a violation through continuing failure to 
obey or neglect to obey a final order of the Commission, each 
day of continuance of such failure or neglect shall be deemed a 
separate offense. In such actions, the United States district 
courts are empowered to grant mandatory injunctions and such 
other and further equitable relief as they deem appropriate in 
the enforcement of such final orders of the Commission.
  (m) Civil Actions for Recovery of Penalties for Knowing 
Violations of Rules and Cease and Desist Orders Respecting 
Unfair or Deceptive Acts or Practices; Jurisdiction; Maximum 
Amount of Penalties; Continuing Violations; De Novo 
Determinations; Compromise or Settlement Procedure.--
          (1)(A) The Commission may commence a civil action to 
        recover a civil penalty in a district court of the 
        United States against any person, partnership, or 
        corporation which violates any rule under this Act 
        respecting unfair or deceptive acts or practices (other 
        than an interpretive rule or a rule violation of which 
        the Commission has provided is not an unfair or 
        deceptive act or practice in violation of subsection 
        (a)(1)) with actual knowledge or knowledge fairly 
        implied on the basis of objective circumstances that 
        such act is unfair or deceptive and is prohibited by 
        such rule. In such action, such person, partnership, or 
        corporation shall be liable for a civil penalty of not 
        more than $10,000 for each violation.
          (B) If the Commission determines in a proceeding 
        under subsection (b) that any act or practice is unfair 
        or deceptive, and issues a final cease and desist 
        order, other than a consent order, with respect to such 
        act or practice, then the Commission may commence a 
        civil action to obtain a civil penalty in a district 
        court of the United States against any person, 
        partnership, or corporation which engages in such act 
        or practice--
                  (1) after such cease and desist order becomes 
                final (whether or not such person, partnership, 
                or corporation was subject to such cease and 
                desist order), and
                  (2) with actual knowledge that such act or 
                practice is unfair or deceptive and is unlawful 
                under subsection (a)(1) of this section. In 
                such action, such person, partnership, or 
                corporation shall be liable for a civil penalty 
                of not more than $10,000 for each violation.
          (C) In the case of a violation through continuing 
        failure to comply with a rule or with section 5(a)(1), 
        each day of continuance of such failure shall be 
        treated as a separate violation, for purposes of 
        subparagraphs (A) and (B). In determining the amount of 
        such a civil penalty, the court shall take into account 
        the degree of culpability, any history of prior such 
        conduct, ability to pay, effect on ability to continue 
        to do business, and such other matters as justice may 
        require.
          (2) If the cease and desist order establishing that 
        the act or practice is unfair or deceptive was not 
        issued against the defendant in a civil penalty action 
        under paragraph (1)(B) the issues of fact in such 
        action against such defendant shall be tried de novo. 
        Upon request of any party to such an action against 
        such defendant, the court shall also review the 
        determination of law made by the Commission in the 
        proceeding under subsection (b) that the act or 
        practice which was the subject of such proceeding 
        constituted an unfair or deceptive act or practice in 
        violation of subsection (a).
          (3) The Commission may compromise or settle any 
        action for a civil penalty if such compromise or 
        settlement is accompanied by a public statement of its 
        reasons and is approved by the court.
  (n) Definition of Unfair Acts or Practices.--The Commission 
shall have no authority under this section or section 18 to 
declare unlawful an act or practice on the grounds that such 
act or practice is unfair unless the act or practice causes or 
is likely to cause substantial injury to consumers which is not 
reasonably avoidable by consumers themselves and not outweighed 
by countervailing benefits to consumers or to competition. In 
determining whether an act or practice is unfair, the 
Commission may consider establishedpublic policies as evidence 
to be considered with all other evidence. Such public policy 
considerations may not serve as a primary basis for such determination.

SEC. 6. ADDITIONAL POWERS OF COMMISSION.

                             [15 U.S.C 46]

  The commission shall also have power--
  (a) Investigation of Persons, Partnerships, or 
Corporations.--To gather and compile information concerning, 
and to investigate from time to time the organization, 
business, conduct, practices, and management of any person, 
partnership, or corporation engaged in or whose business 
affects commerce, excepting banks, savings and loan 
institutions described in section 18(f)(3), Federal credit 
unions described in section 18(f)(4), and common carriers 
subject to the Act to regulate commerce, and its relation to 
other persons, partnerships, and corporations.
  (b) Reports of Persons, Partnerships, and Corporations.--To 
require, by general or special orders, persons, partnerships, 
and corporations engaged in or whose business affects commerce, 
excepting banks, savings and loan institutions described in 
section 18(f)(3), Federal credit unions described in section 
18(f)(4), and common carriers subject to the Act to regulate 
commerce, or any class of them, or any of them, respectively, 
to file with the commission in such form as the commission may 
prescribe annual or special, or both annual and special, 
reports, or answers in writing to specific questions, 
furnishing to the commission such information as it may require 
as to the organization, business, conduct, practices, 
management, and relation to other corporations, partnerships, 
and individuals of the respective persons, partnerships, and 
corporations filing such reports or answers in writing. Such 
reports and answers shall be made under oath, or otherwise, as 
the commission may prescribe, and shall be filed with the 
commission within such reasonable period as the commission may 
prescribe, unless additional time be granted in any case by the 
commission.
  (c) Investigation of Compliance with Antitrust Decrees.--
Whenever a final decree has been entered against any defendant 
corporation in any suit brought by the United States to prevent 
and restrain any violation of the antitrust Acts, to make 
investigation, upon its own initiative, of the manner in which 
the decree has been or is being carried out, and upon the 
application of the Attorney General it shall be its duty to 
make such investigation. It shall transmit to the Attorney 
General a report embodying its findings and recommendations as 
a result of any such investigation, and the report shall be 
made public in the discretion of the commission.
  (d) Investigations of Violations of Antitrust Statutes.--Upon 
the direction of the President or either House of Congress to 
investigate and report the facts relating to any alleged 
violations of the antitrust Acts by any corporation.
  (e) Readjustment of Business of Corporations Violating 
Antitrust Statutes.--Upon the application of the Attorney 
General to investigate and make recommendations for the 
readjustment of the business of any corporation alleged to be 
violating the antitrust Acts in order that the corporation may 
thereafter maintain its organization, management, and conduct 
of business in accordance with law.
  (f) Publication of Information; Reports.--To make public from 
time to time such portions of the information obtained by it 
hereunder as are in the public interest; and to make annual and 
special reports to the Congress and to submit therewith 
recommendations for additional legislation; and to provide for 
the publication of its reports and decisions in such form and 
manner as may be best adapted for public information and use: 
Provided, That the Commission shall not have any authority to 
make public any trade secret or any commercial or financial 
information which is obtained from any person and which is 
privileged or confidential, except that the Commission may 
disclose such information (1) to officers and employees of 
appropriate Federal law enforcement agencies or to any officer 
or employee of any State law enforcement agency upon the prior 
certification of an officer of any such Federal or State law 
enforcement agency that such information will be maintained in 
confidence and will be used only for official law enforcement 
[purposes.] purposes, and (2) to any officer or employee of any 
foreign law enforcement agency under the same circumstances 
that making material available to foreign law enforcement 
agencies is permitted under section 21(b).
  (g) Classification of Corporations; Regulations.--From time 
to time to classify corporations and (except as provided in 
section 18(a)(2) of this Act) to make rules and regulations for 
the purpose of carrying out the provisions of this Act.
  (h) Investigations of Foreign Trade Conditions; Reports.--To 
investigate, from time to time, trade conditions in and with 
foreign countries where associations, combinations, or 
practices of manufacturers, merchants, or traders, or other 
conditions, may affect the foreign trade of the United States, 
and to report to Congress thereon, with such recommendations as 
it deems advisable.
  (i) With respect to the International Antitrust Enforcement 
Assistance Act of 1994, to conduct investigations of possible 
violations of foreign antitrust laws (as defined in section 12 
of such Act).
  (j) Investigative Assistance for Foreign Law Enforcement 
Agencies.--
          (1) In general.--Upon a written request from a 
        foreign law enforcement agency to provide assistance in 
        accordance with this subsection, if the requesting 
        agency states that it is investigating, or engaging in 
        enforcement proceedings against, possible violations of 
        laws prohibiting fraudulent or deceptive commercial 
        practices, or other practices substantially similar to 
        practices prohibited by any provision of the laws 
        administered by the Commission, other than Federal 
        antitrust laws (as defined in section 12(5) of the 
        International Antitrust Enforcement Assistance Act of 
        1994 (15 U.S.C. 6211(5))), to provide the assistance 
        described in paragraph (2) without requiring that the 
        conduct identified in the request constitute a 
        violation of the laws of the United States.
          (2) Type of assistance.--In providing assistance to a 
        foreign law enforcement agency under this subsection, 
        the Commission may--
                  (A) conduct such investigation as the 
                Commission deems necessary to collect 
                information and evidence pertinent tothe 
request for assistance, using all investigative powers authorized by 
this Act; and
                  (B) when the request is from an agency acting 
                to investigate or pursue the enforcement of 
                civil laws, or when the Attorney General refers 
                a request to the Commission from an agency 
                acting to investigate or pursue the enforcement 
                of criminal laws, seek and accept appointment 
                by a United States district court of Commission 
                attorneys to provide assistance to foreign and 
                international tribunals and to litigants before 
                such tribunals on behalf of a foreign law 
                enforcement agency pursuant to section 1782 of 
                title 28, United States Code.
          (3) Criteria for determination.--In deciding whether 
        to provide such assistance, the Commission shall 
        consider all relevant factors, including--
                  (A) whether the requesting agency has agreed 
                to provide or will provide reciprocal 
                assistance to the Commission;
                  (B) whether compliance with the request would 
                prejudice the public interest of the United 
                States; and
                  (C) whether the requesting agency's 
                investigation or enforcement proceeding 
                concerns acts or practices that cause or are 
                likely to cause injury to a significant number 
                of persons.
          (4) International agreements.--If a foreign law 
        enforcement agency has set forth a legal basis for 
        requiring execution of an international agreement as a 
        condition for reciprocal assistance, or as a condition 
        for provision of materials or information to the 
        Commission, the Commission, with prior approval and 
        ongoing oversight of the Secretary of State, and with 
        final approval of the agreement by the Secretary of 
        State, may negotiate and conclude an international 
        agreement, in the name of either the United States or 
        the Commission, for the purpose of obtaining such 
        assistance, materials, or information. The Commission 
        may undertake in such an international agreement to--
                  (A) provide assistance using the powers set 
                forth in this subsection;
                  (B) disclose materials and information in 
                accordance with subsection (f) and section 
                21(b); and
                  (C) engage in further cooperation, and 
                protect materials and information received from 
                disclosure, as authorized by this Act.
          (5) Additional authority.--The authority provided by 
        this subsection is in addition to, and not in lieu of, 
        any other authority vested in the Commission or any 
        other officer of the United States.
          (6) Limitation.--The authority granted by this 
        subsection shall not authorize the Commission to take 
        any action or exercise any power with respect to a 
        bank, a savings and loan institution described in 
        section 18(f)(3) (15 U.S.C. 57a(f)(3)), a Federal 
        credit union described in section 18(f)(4) (15 U.S.C. 
        57a(f)(4)), or a common carrier subject to the Act to 
        regulate commerce, except in accordance with the 
        undesignated proviso following the last designated 
        subsection of section 6 (15 U.S.C. 46).
          (7) Assistance to certain countries.--The Commission 
        may not provide investigative assistance under this 
        subsection to a foreign law enforcement agency from a 
        foreign state that the Secretary of State has 
        determined, in accordance with section 6(j) of the 
        Export Administration Act of 1979 (50 U.S.C. App. 
        2405(j)), has repeatedly provided support for acts of 
        international terrorism, unless and until such 
        determination is rescinded pursuant to section 6(j)(4) 
        of that Act (50 U.S.C. App. 2405(j)(4)).
  (k) Referral of Evidence for Criminal Proceedings.--
          (1) In general.--Whenever the Commission obtains 
        evidence that any person, partnership, or corporation, 
        either domestic or foreign, has engaged in conduct that 
        may constitute a violation of Federal criminal law, to 
        transmit such evidence to the Attorney General, who may 
        institute criminal proceedings under appropriate 
        statutes. Nothing in this paragraph affects any other 
        authority of the Commission to disclose information.
          (2) International information.--The Commission shall 
        endeavor to ensure, with respect to memoranda of 
        understanding and international agreements it may 
        conclude, that material it has obtained from foreign 
        law enforcement agencies acting to investigate or 
        pursue the enforcement of foreign criminal laws may be 
        used for the purpose of investigation, prosecution, or 
        prevention of violations of United States criminal 
        laws.
  (l) Expenditures for Cooperative Arrangements.--To expend 
appropriated funds for--
          (1) operating expenses and other costs of bilateral 
        and multilateral cooperative law enforcement groups 
        conducting activities of interest to the Commission and 
        in which the Commission participates; and
          (2) expenses for consultations and meetings hosted by 
        the Commission with foreign government agency 
        officials, members of their delegations, appropriate 
        representatives and staff to exchange views concerning 
        developments relating to the Commission's mission, 
        development and implementation of cooperation 
        agreements, and provision of technical assistance for 
        the development of foreign consumer protection or 
        competition regimes, such expenses to include necessary 
        administrative and logistic expenses and the expenses 
        of Commission staff and foreign invitees in attendance 
        at such consultations and meetings including--
                  (A) such incidental expenses as meals taken 
                in the course of such attendance;
                  (B) any travel and transportation to or from 
                such meetings; and
                  (C) any other related lodging or subsistence.
  Provided, That the exception of ``banks, savings and loan 
institutions described in section 18(f)(3), Federal credit 
unions described in section 18(f)(4), and common carriers 
subject to the Act to regulate commerce'' from the Commission's 
powers defined in [clauses (a) and (b)] subsections (a), (b), 
and (j) of this section, shall not be construed to limit the 
Commission's authority to gather and compile information, to 
investigate, or to require reports or answers from, any person, 
partnership, or corporation to the extent thatsuch action is 
necessary to the investigation of any person, partnership, or 
corporation, group of persons, partnerships, or corporations, or 
industry which is not engaged or is engaged only incidentally in 
banking, in business as a savings and loan institution, in business as 
a Federal credit union, or in business as a common carrier subject to 
the Act to regulate commerce.
  The Commission shall establish a plan designed to 
substantially reduce burdens imposed upon small businesses as a 
result of requirements established by the Commission under 
clause (b) relating to the filing of quarterly financial 
reports. Such plan shall (1) be established after consultation 
with small businesses and persons who use the information 
contained in such quarterly financial reports; (2) provide for 
a reduction of the number of small businesses required to file 
such quarterly financial reports; and (3) make revisions in the 
forms used for such quarterly financial reports for the purpose 
of reducing the complexity of such forms. The Commission, not 
later than December 31, 1980, shall submit such plan to the 
Committee on Commerce, Science, and Transportation of the 
Senate and to the Committee on Energy and Commerce of the House 
of Representatives. Such plan shall take effect not later than 
October 31, 1981.
  No officer or employee of the Commission or any Commissioner 
may publish or disclose information to the public, or to any 
Federal agency, whereby any line-of-business data furnished by 
a particular establishment or individual can be identified. No 
one other than designated sworn officers and employees of the 
Commission may examine the line-of-business reports from 
individual firms, and information provided in the line-of-
business program administered by the Commission shall be used 
only for statistical purposes. Information for carrying out 
specific law enforcement responsibilities of the Commission 
shall be obtained under practices and procedures in effect on 
the date of the enactment of the Federal Trade Commission 
Improvements Act of 1980, or as changed by law.
  Nothing in this section (other than the provisions of clause 
(c) and clause (d)) shall apply to the business of insurance, 
except that the Commission shall have authority to conduct 
studies and prepare reports relating to the business of 
insurance. The Commission may exercise such authority only upon 
receiving a request which is agreed to by a majority of the 
members of the Committee on Commerce, Science, and 
Transportation of the Senate or the Committee on Energy and 
Commerce of the House of Representatives. The authority to 
conduct any such study shall expire at the end of the Congress 
during which the request for such study was made. Section 16 of 
the Federal Trade Commission Act

           *       *       *       *       *       *       *

SEC. 16. COMMENCEMENT, DEFENSE, INTERVENTION AND SUPERVISION OF 
                    LITIGATION AND APPEAL BY COMMISSION OR ATTORNEY 
                    GENERAL.

                             [15 U.S.C. 56]

  (a) Procedure for Exercise of Authority to Litigate or 
Appeal.--
          (1) Except as otherwise provided in paragraph (2) or 
        (3), if--
                  (A) before commencing, defending, or 
                intervening in, any civil action involving this 
                Act (including an action to collect a civil 
                penalty) which the Commission, or the Attorney 
                General on behalf of the Commission, is 
                authorized to commence, defend, or intervene 
                in, the Commission gives written notification 
                and undertakes to consult with the Attorney 
                General with respect to such action; and
                  (B) the Attorney General fails within 45 days 
                after receipt of such notification to commence, 
                defend, or intervene in, such action; the 
                Commission may commence, defend, or intervene 
                in, and supervise the litigation of, such 
                action and any appeal of such action in its own 
                name by any of its attorneys designated by it 
                for such purpose.
          (2) Except as otherwise provided in paragraph (3), in 
        any civil action--
                  (A) under section 13 of this Act (relating to 
                injunctive relief);
                  (B) under section 19 of this Act (relating to 
                consumer redress);
                  (C) to obtain judicial review of a rule 
                prescribed by the Commission, or a cease and 
                desist order issued under section 5 of this 
                Act; [or]
                  (D) under the second paragraph of section 9 
                of this Act (relating to enforcement of a 
                subpena) and under the fourth paragraph of such 
                section (relating to a compliance with section 
                6 of this Act); or
                  (E) under section 21A of this Act;
        the Commission shall have exclusive authority to 
        commence or defend, and supervise the litigation of, 
        such action and any appeal of such action in its own 
        name by any of its attorneys designated by it for such 
        purpose, unless the Commission authorizes the Attorney 
        General to do so. The Commission shall inform the 
        Attorney General of the exercise of such authority and 
        such exercise shall not preclude the Attorney General 
        from intervening on behalf of the United States in such 
        action and any appeal of such action as may be 
        otherwise provided by law.
          (3)(A) If the Commission makes a written request to 
        the Attorney General, within the 10-day period which 
        begins on the date of the entry of the judgment in any 
        civil action in which the Commission represented itself 
        pursuant to paragraph (1) or (2), to represent itself 
        through any of its attorneys designated by it for such 
        purpose before the Supreme Court in such action, it may 
        do so, if--
                  (i) the Attorney General concurs with such 
                request; or
                  (ii) the Attorney General, within the 60-day 
                period which begins on the date of the entry of 
                such judgment--
                          (a) refuses to appeal or file a 
                        petition for writ of certiorari with 
                        respect to such civil action, in which 
                        case he shall give written notification 
                        to the Commission of the reasons for 
                        such refusal within such 60-day period; 
                        or
                          (b) the Attorney General fails to 
                        take any action with respect to the 
                        Commission's request.
          (B) In any case where the Attorney General represents 
        the Commission before the Supreme Court in any civil 
        action in which the Commission represented itself 
        pursuant to paragraph (1) or (2), the Attorney General 
        may not agree to any settlement, compromise, or 
        dismissal of such action, or confess error in the 
        Supreme Court with respect to such action, unless the 
        Commission concurs.
          (C) For purposes of this paragraph (with respect to 
        representation before the Supreme Court), the term 
        ``Attorney General'' includes the Solicitor General.
          (4) If, prior to the expiration of the 45-day period 
        specified in paragraph (1) of this section or a 60-day 
        period specified in paragraph (3), any right of the 
        Commission to commence, defend, or intervene in, any 
        such action or appeal may be extinguished due to any 
        procedural requirement of any court with respect to the 
        time in which any pleadings, notice of appeal, or other 
        acts pertaining to such action or appeal may be taken, 
        the Attorney General shall have one-half of the time 
        required to comply with any such procedural requirement 
        of the court (including any extension of such time 
        granted by the court) for the purpose of commencing, 
        defending, or intervening in the civil action pursuant 
        to paragraph (1) or for the purpose of refusing to 
        appeal or file a petition for writ of certiorari and 
        the written notification or failing to take any action 
        pursuant to paragraph 3(A)(ii).
          (5) The provisions of this subsection shall apply 
        notwithstanding chapter 31 of title 28, United States 
        Code, or any other provision of law.
  (b) Certification by Commission to Attorney General for 
Criminal Proceedings.--Whenever the Commission has reason to 
believe that any person, partnership, or corporation is liable 
for a criminal penalty under this Act, the Commission shall 
certify the facts to the Attorney General, whose duty it shall 
be to cause appropriate criminal proceedings to be brought.
  (c) Foreign Litigation.--
          (1) Commission attorneys.--With the concurrence of 
        the Attorney General, the Commission may designate 
        Commission attorneys to assist the Attorney General in 
        connection with litigation in foreign courts on 
        particular matters in which the Commission has an 
        interest.
          (2) Reimbursement for foreign counsel.--The 
        Commission is authorized to expend appropriated funds, 
        upon agreement with the Attorney General, to reimburse 
        the Attorney General for the retention of foreign 
        counsel for litigation in foreign courts and for 
        expenses related to litigation in foreign courts in 
        which the Commission has an interest.
          (3) Limitation on use of funds.--Nothing in this 
        subsection authorizes the payment of claims or 
        judgments from any source other than the permanent and 
        indefinite appropriation authorized by section 1304 of 
        title 31, United States Code.
          (4) Other authority.--The authority provided by this 
        subsection is in addition to any other authority of the 
        Commission or the Attorney General.''.

           *       *       *       *       *       *       *

SEC. 21. CONFIDENTIALITY.

                           [15 U.S.C. 57b-2]

  (a) Definitions.--For purposes of this section:
          (1) The term ``material'' means documentary material, 
        tangible things, written reports or answers to 
        questions, and transcripts of oral testimony.
          (2) The term ``Federal agency'' has the meaning given 
        it in section 552(e) of title 5, United States Code.
  (b) Procedures Respecting Documents, Tangible Things, or 
Transcripts of Oral Testimony Received Pursuant to Compulsory 
Process in Investigation.--
          (1) With respect to any document, tangible thing, or 
        transcript of oral testimony received by the Commission 
        pursuant to compulsory process in an investigation, a 
        purpose of which is to determine whether any person may 
        have violated any provision of the laws administered by 
        the Commission, the procedures established in paragraph 
        (2) through paragraph (7) shall apply.
          (2)(A) The Commission shall designate a duly 
        authorized agent to serve as custodian of documentary 
        material, tangible things, or written reports or 
        answers to questions, and transcripts of oral 
        testimony, and such additional duly authorized agents 
        as the Commission shall determine from time to time to 
        be necessary to serve as deputies to the custodian.
          (B) Any person upon whom any demand for the 
        production of documentary material has been duly served 
        shall make such material available for inspection and 
        copying or reproduction to the custodian designated in 
        such demand at the principal place of business of such 
        person (or at such other place as such custodian and 
        such person thereafter may agree and prescribe in 
        writing or as the court may direct pursuant to section 
        20(h)) on the return date specified in such demand (or 
        on such later date as such custodian may prescribe in 
        writing). Such person may upon written agreement 
        between such person and the custodian substitute copies 
        for originals of all or any part of such material.
          (3)(A) The custodian to whom any documentary 
        material, tangible things, written reports or answers 
        to questions, and transcripts of oral testimony are 
        delivered shall take physical possession of such 
        material, reports or answers, and transcripts, and 
        shall be responsible for the use made of such material, 
        reports or answers, and transcripts, and for the return 
        of material, pursuant to the requirements of this 
        section.
          (B) The custodian may prepare such copies of the 
        documentary material, written reports or answers to 
        questions, and transcripts of oral testimony, and may 
        make tangible things available, as may be required for 
        official use by any duly authorized officer or employee 
        of the Commissionunder regulations which shall be 
promulgated by the Commission. Notwithstanding subparagraph (C), such 
material, things, and transcripts may be used by any such officer or 
employee in connection with the taking of oral testimony under this 
section.
          (C) Except as otherwise provided in this section, 
        while in the possession of the custodian, no 
        documentary material, tangible things, reports or 
        answers to questions, and transcripts of oral testimony 
        shall be available for examination by any individual 
        other than a duly authorized officer or employee of the 
        Commission without the consent of the person who 
        produced the material, things, or transcripts. Nothing 
        in this section is intended to prevent disclosure to 
        either House of the Congress or to any committee or 
        subcommittee of the Congress, except that the 
        Commission immediately shall notify the owner or 
        provider of any such information of a request for 
        information designated as confidential by the owner or 
        provider.
          (D) While in the possession of the custodian and 
        under such reasonable terms and conditions as the 
        Commission shall prescribe--
                  (i) documentary material, tangible things, or 
                written reports shall be available for 
                examination by the person who produced the 
                material, or by any duly authorized 
                representative of such person; and
                  (ii) answers to questions in writing and 
                transcripts of oral testimony shall be 
                available for examination by the person who 
                produced the testimony or by his attorney.
          (4) Whenever the Commission has instituted a 
        proceeding against a person, partnership, or 
        corporation, the custodian may deliver to any officer 
        or employee of the Commission documentary material, 
        tangible things, written reports or answers to 
        questions, and transcripts of oral testimony for 
        official use in connection with such proceeding. Upon 
        the completion of the proceeding, the officer or 
        employee shall return to the custodian any such 
        material so delivered which has not been received into 
        the record of the proceeding.
          (5) If any documentary material, tangible things, 
        written reports or answers to questions, and 
        transcripts of oral testimony have been produced in the 
        course of any investigation by any person pursuant to 
        compulsory process and--
                  (A) any proceeding arising out of the 
                investigation has been completed; or
                  (B) no proceeding in which the material may 
                be used has been commenced within a reasonable 
                time after completion of the examination and 
                analysis of all such material and other 
                information assembled in the course of the 
                investigation; then the custodian shall, upon 
                written request of the person who produced the 
                material, return to the person any such 
                material which has not been received into the 
                record of any such proceeding (other than 
                copies of such material made by the custodian 
                pursuant to paragraph (3)(B)).
          (6) The custodian of any documentary material, 
        written reports or answers to questions, and 
        transcripts of oral testimony may deliver to any 
        officers or employees of appropriate Federal law 
        enforcement agencies, in response to a written request, 
        copies of such material for use in connection with an 
        investigation or proceeding under the jurisdiction of 
        any such agency. The custodian of any tangible things 
        may make such things available for inspection to such 
        persons on the same basis. Such materials shall not be 
        made available to any such agency until the custodian 
        receives certification of any officer of such agency 
        that such information will be maintained in confidence 
        and will be used only for official law enforcement 
        purposes. Such documentary material, results of 
        inspections of tangible things, written reports or 
        answers to questions, and transcripts of oral testimony 
        may be used by any officer or employee of such agency 
        only in such manner and subject to such conditions as 
        apply to the Commission under this section. The 
        custodian may make such materials available to any 
        State law enforcement agency upon the prior 
        certification of any officer of such agency that such 
        information will be maintained in confidence and will 
        be used only for official law enforcement purposes. The 
        custodian may make such material available to any 
        foreign law enforcement agency upon the prior 
        certification of an appropriate official of any such 
        foreign law enforcement agency, either by a prior 
        agreement or memorandum of understanding with the 
        Commission or by other written certification, that such 
        material will be maintained in confidence and will be 
        used only for official law enforcement purposes, if--
                  (A) the foreign law enforcement agency has 
                set forth a bona fide legal basis for its 
                authority to maintain the material in 
                confidence;
                  (B) the materials are to be used for purposes 
                of investigating, or engaging in enforcement 
                proceedings related to, possible violations 
                of--
                          (i) foreign laws prohibiting 
                        fraudulent or deceptive commercial 
                        practices, or other practices 
                        substantially similar to practices 
                        prohibited by any law administered by 
                        the Commission;
                          (ii) a law administered by the 
                        Commission, if disclosure of the 
                        material would further a Commission 
                        investigation or enforcement 
                        proceeding; or
                          (iii) with the approval of the 
                        Attorney General, other foreign 
                        criminal laws, if such foreign criminal 
                        laws are offenses defined in or covered 
                        by a criminal mutual legal assistance 
                        treaty in force between the government 
                        of the United States and the foreign 
                        law enforcement agency's government;
                  (C) the appropriate Federal banking agency 
                (as defined in section 3(q) of the Federal 
                Deposit Insurance Act (12 U.S.C. 1813(q)) or, 
                in the case of a Federal credit union, the 
                National Credit Union Administration, has given 
                its prior approval if the materials to be 
                provided under subparagraph (B) are requested 
                by the foreign law enforcement agency for the 
                purpose of investigating, or engaging in 
                enforcement proceedings based on, possible 
                violations of law by a bank, a savings and loan 
                institution described in section 18(f)(3) of 
                the Federal Trade Commission Act (15 U.S.C. 
                57a(f)(3)), or a Federal credit union described 
                in section 18(f)(4) of the Federal Trade 
                Commission Act (15 U.S.C. 57a(f)(4)); and
                  (D) the foreign law enforcement agency is not 
                from a foreign state that the Secretary of 
                State has determined, in accordance with 
                section 6(j) of the Export Administration Act 
                of 1979 (50 U.S.C. App. 2405(j)), has 
                repeatedly provided support for acts of 
                international terrorism, unless and until such 
                determination is rescinded pursuant to section 
                6(j)(4) of that Act (50 U.S.C. App. 
                2405(j)(4)).
Nothing in the preceding sentence authorizes the disclosure of 
material obtained in connection with the administration of the 
Federal antitrust laws or foreign antitrust laws (as defined in 
paragraphs (5) and (7), respectively, of section 12 of the 
International Antitrust Enforcement Assistance Act of 1994 (15 
U.S.C. 6211)) to any officer or employee of a foreign law 
enforcement agency.
          (7) In the event of the death, disability, or 
        separation from service in the Commission of the 
        custodian of any documentary material, tangible things, 
        written reports or answers to questions, and 
        transcripts of oral testimony produced under any demand 
        issued under this Act, or the official relief of the 
        custodian from responsibility for the custody and 
        control of such material, the Commission promptly 
        shall--
                  (A) designate under paragraph (2)(A) another 
                duly authorized agent to serve as custodian of 
                such material; and
                  (B) transmit in writing to the person who 
                produced the material or testimony notice as to 
                the identity and address of the successor so 
                designated. Any successor designated under 
                paragraph (2)(A) as a result of the 
                requirements of this paragraph shall have (with 
                regard to the material involved) all duties and 
                responsibilities imposed by this section upon 
                his predecessor in office with regard to such 
                material, except that he shall not be held 
                responsible for any default or dereliction 
                which occurred before his designation.
  (c) Information Considered Confidential.--
          (1) All information reported to or otherwise obtained 
        by the Commission which is not subject to the 
        requirements of subsection (b) shall be considered 
        confidential when so marked by the person supplying the 
        information and shall not be disclosed, except in 
        accordance with the procedures established in paragraph 
        (2) and paragraph (3).
          (2) If the Commission determines that a document 
        marked confidential by the person supplying it may be 
        disclosed because it is not a trade secret or 
        commercial or financial information which is obtained 
        from any person and which is privileged or 
        confidential, within the meaning of section 6(f), then 
        the Commission shall notify such person in writing that 
        the Commission intends to disclose the document at a 
        date not less than 10 days after the date of receipt of 
        notification.
          (3) Any person receiving such notification may, if he 
        believes disclosure of the document would cause 
        disclosure of a trade secret, or commercial or 
        financial information which is obtained from any person 
        and which is privileged or confidential, within the 
        meaning of section 6(f), before the date set for 
        release of the document, bring an action in the 
        district court of the United States for the district 
        within which the documents are located or in the United 
        States District Court for the District of Columbia to 
        restrain disclosure of the document. Any person 
        receiving such notification may file with the 
        appropriate district court or court of appeals of the 
        United States, as appropriate, an application for a 
        stay of disclosure. The documents shall not be 
        disclosed until the court has ruled on the application 
        for a stay.
  (d) Particular Disclosures Allowed.--
          (1) The provisions of subsection (c) shall not be 
        construed to prohibit--
                  (A) the disclosure of information to either 
                House of the Congress or to any committee or 
                subcommittee of the Congress, except that the 
                Commission immediately shall notify the owner 
                or provider of any such information of a 
                request for information designated as 
                confidential by the owner or provider;
                  (B) the disclosure of the results of any 
                investigation or study carried out or prepared 
                by the Commission, except that no information 
                shall be identified nor shall information be 
                disclosed in such a manner as to disclose a 
                trade secret of any person supplying the trade 
                secret, or to disclose any commercial or 
                financial information which is obtained from 
                any person and which is privileged or 
                confidential;
                  (C) the disclosure of relevant and material 
                information in Commission adjudicative 
                proceedings or in judicial proceedings to which 
                the Commission is a party; or
                  (D) the disclosure to a Federal agency of 
                disaggregated information obtained in 
                accordance with section 3512 of title 44, 
                United States Code, except that the recipient 
                agency shall use such disaggregated information 
                for economic, statistical, or policymaking 
                purposes only, and shall not disclose such 
                information in an individually identifiable 
                form.
          (2) Any disclosure of relevant and material 
        information in Commission adjudicative proceedings or 
        in judicial proceedings to which the Commission is a 
        party shall be governed by the rules of the Commission 
        for adjudicative proceedings or by court rules or 
        orders, except that the rules of the Commission shall 
        not be amended in a manner inconsistent with the 
        purposes of this section.
  (e) Effect on Other Statutory Provisions Limiting 
Disclosure.--Nothing in this section shall supersede any 
statutory provision which expressly prohibits or limits 
particular disclosures by the Commission, or which authorizes 
disclosures to any other Federal agency.
  [(f) Exemption from Disclosure.--Any material which is 
received by the Commission in any investigation, a purpose of 
which is to determine whether any person may have violated any 
provisionof the laws administered by the Commission, and which 
is provided pursuant to any compulsory process under this Act or which 
is provided voluntarily in place of such compulsory process shall be 
exempt from disclosure under section 552 of title 5, United States 
Code.]
  (f) Exemption from Public Disclosure.--
          (1) In general.--Any material which is received by 
        the Commission in any investigation, a purpose of which 
        is to determine whether any person may have violated 
        any provision of the laws administered by the 
        Commission, and which is provided pursuant to any 
        compulsory process under this Act or which is provided 
        voluntarily in place of such compulsory process shall 
        not be required to be disclosed under section 552 of 
        title 5, United States Code, or any other provision of 
        law, except as provided in paragraph (2)(B) of this 
        section.
          (2) Material obtained from a foreign source.--
                  (A) In general.--Except as provided in 
                subparagraph (B) of this paragraph, the 
                Commission shall not be required to disclose 
                under section 552 of title 5, United States 
                Code, or any other provision of law--
                          (i) any material obtained from a 
                        foreign law enforcement agency or other 
                        foreign government agency, if the 
                        foreign law enforcement agency or other 
                        foreign government agency has requested 
                        confidential treatment, or has 
                        precluded such disclosure under other 
                        use limitations, as a condition of 
                        providing the material;
                          (ii) any material reflecting a 
                        consumer complaint obtained from any 
                        other foreign source, if that foreign 
                        source supplying the material has 
                        requested confidential treatment as a 
                        condition of providing the material; or
                          (iii) any material reflecting a 
                        consumer complaint submitted to a 
                        Commission reporting mechanism 
                        sponsored in part by foreign law 
                        enforcement agencies or other foreign 
                        government agencies.
                  (B) Savings provision.--Nothing in this 
                subsection shall authorize the Commission to 
                withhold information from the Congress or 
                prevent the Commission from complying with an 
                order of a court of the United States in an 
                action commenced by the United States or the 
                Commission.

SEC. 21A. CONFIDENTIALITY AND DELAYED NOTICE OF COMPULSORY PROCESS FOR 
                    CERTAIN THIRD PARTIES.

  (a) Application with Other Laws.--The Right to Financial 
Privacy Act (12 U.S.C. 3401 et seq.) and chapter 121 of title 
18, United States Code, shall apply with respect to the 
Commission, except as otherwise provided in this section.
  (b) Procedures for Delay of Notification or Prohibition of 
Disclosure.--The procedures for delay of notification or 
prohibition of disclosure under the Right to Financial Privacy 
Act (12 U.S.C. 3401 et seq.) and chapter 121 of title 18, 
United States Code, including procedures for extensions of such 
delays or prohibitions, shall be available to the Commission, 
provided that, notwithstanding any provision therein--
          (1) a court may issue an order delaying notification 
        or prohibiting disclosure (including extending such an 
        order) in accordance with the procedures of section 
        1109 of the Right to Financial Privacy Act (12 U.S.C. 
        3409) (if notification would otherwise be required 
        under that Act), or section 2705 of title 18, United 
        States Code, (if notification would otherwise be 
        required under chapter 121 of that title), if the 
        presiding judge or magistrate judge finds that there is 
        reason to believe that such notification or disclosure 
        may cause an adverse result as defined in subsection 
        (g) of this section; and
          (2) if notification would otherwise be required under 
        chapter 121 of title 18, United States Code, the 
        Commission may delay notification (including extending 
        such a delay) upon the execution of a written 
        certification in accordance with the procedures of 
        section 2705 of that title if the Commission finds that 
        there is reason to believe that notification may cause 
        an adverse result as defined in subsection (g) of this 
        section.
  (c) Ex Parte Application by Commission.--
          (1) In general.--If neither notification nor delayed 
        notification by the Commission is required under the 
        Right to Financial Privacy Act (12 U.S.C. 3401 et seq.) 
        or chapter 121 of title 18, United States Code, the 
        Commission may apply ex parte to a presiding judge or 
        magistrate judge for an order prohibiting the recipient 
        of compulsory process issued by the Commission from 
        disclosing to any other person the existence of the 
        process, notwithstanding any law or regulation of the 
        United States, or under the constitution, or any law or 
        regulation, of any State, political subdivision of a 
        State, territory of the United States, or the District 
        of Columbia. The presiding judge or magistrate judge 
        may enter such an order granting the requested 
        prohibition of disclosure for a period not to exceed 60 
        days if there is reason to believe that disclosure may 
        cause an adverse result as defined in subsection (g). 
        The presiding judge or magistrate judge may grant 
        extensions of this order of up to 30 days each in 
        accordance with this subsection, except that in no 
        event shall the prohibition continue in force for more 
        than a total of 9 months.
          (2) Application.--This subsection shall apply only in 
        connection with compulsory process issued by the 
        Commission where the recipient of such process is not a 
        subject of the investigation or proceeding at the time 
        such process is issued.
          (3) Limitation.--No order issued under this 
        subsection shall prohibit any recipient from disclosing 
        to a Federal agency that the recipient has received 
        compulsory process from the Commission.
  (d) No Liability for Failure to Notify.--If neither 
notification nor delayed notification by the Commission is 
required under the Right to Financial Privacy Act (12 U.S.C. 
3401 et seq.) or chapter 121 of title 18, United States Code, 
the recipient of compulsory process issued by the Commission 
under this Act shall not be liable under any law or regulation 
of the United States, or under the constitution, or any law or 
regulation, of any State, political subdivision of a State, 
territory of the United States, or the District of Columbia, or 
under any contract or other legally enforceable 
agreement, for failure to provide notice to any person that 
such process has been issued or that the recipient has provided 
information in response to such process. The preceding sentence 
does not exempt any recipient from liability for--
          (1) the underlying conduct reported;
          (2) a failure to comply with the record retention 
        requirements under section 1104(c) of the Right to 
        Financial Privacy Act (12 U.S.C. 3404), where 
        applicable; or
          (3) any failure to comply with any obligation the 
        recipient may have to disclose to a Federal agency that 
        the recipient has received compulsory process from the 
        Commission or intends to provide or has provided 
        information to the Commission in response to such 
        process.
  (e) Venue and Procedure.--
          (1) In general.--All judicial proceedings initiated 
        by the Commission under the Right to Financial Privacy 
        Act (12 U.S.C. 3401 et seq.), chapter 121 of title 18, 
        United States Code, or this section may be brought in 
        the United States District Court for the District of 
        Columbia or any other appropriate United States 
        District Court. All ex parte applications by the 
        Commission under this section related to a single 
        investigation may be brought in a single proceeding.
          (2) In camera proceedings.--Upon application by the 
        Commission, all judicial proceedings pursuant to this 
        section shall be held in camera and the records thereof 
        sealed until expiration of the period of delay or such 
        other date as the presiding judge or magistrate judge 
        may permit.
  (f) Section Not To Apply to Antitrust Investigations or 
Proceedings.--This section shall not apply to an investigation 
or proceeding related to the administration of Federal 
antitrust laws or foreign antitrust laws (as defined in 
paragraphs (5) and (7), respectively, of section 12 of the 
International Antitrust Enforcement Assistance Act of 1994 (15 
U.S.C. 6211).
  (g) Adverse Result Defined.--For purposes of this section the 
term ``adverse result'' means--
          (1) endangering the life or physical safety of an 
        individual;
          (2) flight from prosecution;
          (3) the destruction of, or tampering with, evidence;
          (4) the intimidation of potential witnesses; or
          (5) otherwise seriously jeopardizing an investigation 
        or proceeding related to fraudulent or deceptive 
        commercial practices or persons involved in such 
        practices, or unduly delaying a trial related to such 
        practices or persons involved in such practices, 
        including, but not limited to, by--
                  (A) the transfer outside the territorial 
                limits of the United States of assets or 
                records related to fraudulent or deceptive 
                commercial practices or related to persons 
                involved in such practices;
                  (B) impeding the ability of the Commission to 
                identify persons involved in fraudulent or 
                deceptive commercial practices, or to trace the 
                source or disposition of funds related to such 
                practices; or
                  (C) the dissipation, fraudulent transfer, or 
                concealment of assets subject to recovery by 
                the Commission.

SEC. 21B. PROTECTION FOR VOLUNTARY PROVISION OF INFORMATION.

  (a) In General.--
          (1) No liability for providing certain material.--An 
        entity described in paragraphs (2) or (3) of subsection 
        (d) that voluntarily provides material to the 
        Commission that such entity reasonably believes is 
        relevant to--
                  (A) a possible unfair or deceptive act or 
                practice, as defined in section 5(a) of this 
                Act; or
                  (B) assets subject to recovery by the 
                Commission, including assets located in foreign 
                jurisdictions;
        shall not be liable to any person under any law or 
        regulation of the United States, or under the 
        constitution, or any law or regulation, of any State, 
        political subdivision of a State, territory of the 
        United States, or the District of Columbia, for such 
        provision of material or for any failure to provide 
        notice of such provision of material or of intention to 
        so provide material.
          (2) Limitations.--Nothing in this subsection shall be 
        construed to exempt any such entity from liability--
                  (A) for the underlying conduct reported; or
                  (B) to any Federal agency for providing such 
                material or for any failure to comply with any 
                obligation the entity may have to notify a 
                Federal agency prior to providing such material 
                to the Commission.
  (b) Certain Financial Institutions.--An entity described in 
paragraph (1) of subsection (d) shall, in accordance with 
section 5318(g)(3) of title 31, United States Code, be exempt 
from liability for making a voluntary disclosure to the 
Commission of any possible violation of law or regulation, 
including--
          (1) a disclosure regarding assets, including assets 
        located in foreign jurisdictions--
                  (A) related to possibly fraudulent or 
                deceptive commercial practices;
                  (B) related to persons involved in such 
                practices; or
                  (C) otherwise subject to recovery by the 
                Commission; or
          (2) a disclosure regarding suspicious chargeback 
        rates related to possibly fraudulent or deceptive 
        commercial practices.
  (c) Consumer Complaints.--Any entity described in subsection 
(d) that voluntarily provides consumer complaints sent to it, 
or information contained therein, to the Commission shall not 
be liable to any person under any law or regulation of the 
United States, or under the constitution, or any law or 
regulation, of any State, political subdivision of a State, 
territory of the United States, or the District of Columbia, 
for such provision of material or for any failure to provide 
notice of such provision of material or of intention to so 
provide material. This subsection shall not provide any 
exemption from liability for the underlying conduct.
  (d) Application.--This section applies to the following 
entities, whether foreign or domestic:
          (1) A financial institution as defined in section 
        5312 of title 31, United States Code.
          (2) To the extent not included in paragraph (1), a 
        bank or thrift institution, a commercial bank or trust 
        company, an investment company, a credit card issuer, 
        an operator of a creditcard system, and an issuer, 
redeemer, or cashier of travelers' checks, money orders, or similar 
instruments.
          (3) A courier service, a commercial mail receiving 
        agency, an industry membership organization, a payment 
        system provider, a consumer reporting agency, a domain 
        name registrar or registry acting as such, and a 
        provider of alternative dispute resolution services.
          (4) An Internet service provider or provider of 
        telephone services.

           *       *       *       *       *       *       *

SEC. 25A. STAFF EXCHANGES.

  (a) In General.--The Commission may--
          (1) retain or employ officers or employees of foreign 
        government agencies on a temporary basis as employees 
        of the Commission pursuant to section 2 of this Act or 
        section 3101 or section 3109 of title 5, United States 
        Code; and
          (2) detail officers or employees of the Commission to 
        work on a temporary basis for appropriate foreign 
        government agencies.
  (b) Reciprocity and Reimbursement.--The staff arrangements 
described in subsection (a) need not be reciprocal. The 
Commission may accept payment or reimbursement, in cash or in 
kind, from a foreign government agency to which this section is 
applicable, or payment or reimbursement made on behalf of such 
agency, for expenses incurred by the Commission, its members, 
and employees in carrying out such arrangements.
  (c) Standards of Conduct.--A person appointed under 
subsection (a)(1) shall be subject to the provisions of law 
relating to ethics, conflicts of interest, corruption, and any 
other criminal or civil statute or regulation governing the 
standards of conduct for Federal employees that are applicable 
to the type of appointment.

SEC. 26. REIMBURSEMENT OF EXPENSES.

  The Commission may accept payment or reimbursement, in cash 
or in kind, from a domestic or foreign law enforcement agency, 
or payment or reimbursement made on behalf of such agency, for 
expenses incurred by the Commission, its members, or employees 
in carrying out any activity pursuant to a statute administered 
by the Commission without regard to any other provision of law. 
Any such payments or reimbursements shall be considered a 
reimbursement to the appropriated funds of the Commission.

SEC. 27. GIFTS AND VOLUNTARY AND UNCOMPENSATED SERVICES.

  (a) In General.--In furtherance of its functions the 
Commission may accept, hold, administer, and use unconditional 
gifts, donations, and bequests of real, personal, and other 
property and, notwithstanding section 1342 of 10 title 31, 
United States Code, accept voluntary and uncompensated 
services.
  (b) Limitations.--
          (1) Conflicts of interest.--The Commission shall 
        establish written guidelines setting forth criteria to 
        be used in determining whether the acceptance, holding, 
        administration, or use of a gift, donation, or bequest 
        pursuant to subsection (a) would reflect unfavorably 
        upon the ability of the Commission or any employee to 
        carry out its responsibilities or official duties in a 
        fair and objective manner, or would compromise the 
        integrity or the appearance of the integrity of its 
        programs or any official involved in those programs.
          (2) Voluntary services.--A person who provides 
        voluntary and uncompensated service under subsection 
        (a) shall be considered a Federal employee for purposes 
        of--
                  (A) chapter 81 of title 5, United States 
                Code, (relating to compensation for injury); 
                and
                  (B) the provisions of law relating to ethics, 
                conflicts of interest, corruption, and any 
                other criminal or civil statute or regulation 
                governing the standards of conduct for Federal 
                employees.
          (3) Tort liability of volunteers.--A person who 
        provides voluntary and uncompensated service under 
        subsection (a), while assigned to duty, shall be deemed 
        a volunteer of a nonprofit organization or governmental 
        entity for purposes of the Volunteer Protection Act of 
        1997 (42 U.S.C. 14501 et seq.). Subsection (d) of 
        section 4 of such Act (42 U.S.C. 14503(d)) shall not 
        apply for purposes of any claim against such volunteer.

SEC. [26] 28. SHORT TITLE.

  This Act may be cited as the ``Federal Trade Commission 
Act.''

                                  
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