109TH CONGRESS

2D SESSION S. 1608

AN ACT

To enhance Federal Trade Commission enforcement against

illegal spam, spyware, and cross-border fraud and deception, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; FINDINGS; PURPOSE.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Undertaking Spam, Spyware, And Fraud Enforcement

6 With Enforcers beyond Borders Act of 2005’’ or the ‘‘U.S.

7 SAFE WEB Act of 2005’’.
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1 (b) FINDINGS.—The Congress finds the following:

2 (1) The Federal Trade Commission protects

3 consumers from fraud and deception. Cross-border

4 fraud and deception are growing international prob5 lems that affect American consumers and busi6 nesses.

7 (2) The development of the Internet and im8 provements in telecommunications technologies have

9 brought significant benefits to consumers. At the

10 same time, they have also provided unprecedented

11 opportunities for those engaged in fraud and decep12 tion to establish operations in one country and vic13 timize a large number of consumers in other coun14 tries.

15 (3) An increasing number of consumer com16 plaints collected in the Consumer Sentinel database

17 maintained by the Commission, and an increasing

18 number of cases brought by the Commission, involve

19 foreign consumers, foreign businesses or individuals,

20 or assets or evidence located outside the United

21 States.

22 (4) The Commission has legal authority to rem23 edy law violations involving domestic and foreign

24 wrongdoers, pursuant to the Federal Trade Commis25 sion Act. The Commission’s ability to obtain effec-
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1 tive relief using this authority, however, may face

2 practical impediments when wrongdoers, victims,

3 other witnesses, documents, money and third parties

4 involved in the transaction are widely dispersed in

5 many different jurisdictions. Such circumstances

6 make it difficult for the Commission to gather all

7 the information necessary to detect injurious prac8 tices, to recover offshore assets for consumer re9 dress, and to reach conduct occurring outside the

10 United States that affects United States consumers.

11 (5) Improving the ability of the Commission

12 and its foreign counterparts to share information

13 about cross-border fraud and deception, to conduct

14 joint and parallel investigations, and to assist each

15 other is critical to achieve more timely and effective

16 enforcement in cross-border cases.

17 (c) PURPOSE.—The purpose of this Act is to enhance

18 the ability of the Federal Trade Commission to protect

19 consumers from illegal spam, spyware, and cross-border

20 fraud and deception and other consumer protection law

21 violations.

22 SEC. 2. FOREIGN LAW ENFORCEMENT AGENCY DEFINED.

23 Section 4 of the Federal Trade Commission Act (15

24 U.S.C. 44) is amended by adding at the end the following:

25 ‘‘ ‘Foreign law enforcement agency’ means—
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1 ‘‘(1) any agency or judicial authority of a for2 eign government, including a foreign state, a polit3 ical subdivision of a foreign state, or a multinational

4 organization constituted by and comprised of foreign

5 states, that is vested with law enforcement or inves6 tigative authority in civil, criminal, or administrative

7 matters; and

8 ‘‘(2) any multinational organization, to the ex9 tent that it is acting on behalf of an entity described

10 in paragraph (1).’’.

11 SEC. 3. AVAILABILITY OF REMEDIES.

12 Section 5(a) of the Federal Trade Commission Act

13 (15 U.S.C. 45(a)) is amended by adding at the end the

14 following:

15 ‘‘(4)(A) For purposes of subsection (a), the

16 term ‘unfair or deceptive acts or practices’ includes

17 such acts or practices involving foreign commerce

18 that—

19 ‘‘(i) cause or are likely to cause reasonably

20 foreseeable injury within the United States; or

21 ‘‘(ii) involve material conduct occurring

22 within the United States.

23 ‘‘(B) All remedies available to the Commission

24 with respect to unfair and deceptive acts or practices

25 shall be available for acts and practices described in
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1 this paragraph, including restitution to domestic or

2 foreign victims.’’.

3 SEC. 4. POWERS OF THE COMMISSION.

4 (a) PUBLICATION OF INFORMATION; REPORTS.—Sec5 tion 6(f) of the Federal Trade Commission Act (15 U.S.C.

6 46(f)) is amended—

7 (1) by inserting ‘‘(1)’’ after ‘‘such information’’

8 the first place it appears; and

9 (2) by striking ‘‘purposes.’’ and inserting ‘‘pur10 poses, and (2) to any officer or employee of any for11 eign law enforcement agency under the same cir12 cumstances that making material available to foreign

13 law enforcement agencies is permitted under section

14 21(b).’’.

15 (b) OTHER POWERS OF THE COMMISSION.—Section

16 6 of the Federal Trade Commission Act (15 U.S.C. 46)

17 is further amended by inserting after subsection (i) and

18 before the proviso the following:

19 ‘‘(j) INVESTIGATIVE ASSISTANCE FOR FOREIGN LAW

20 ENFORCEMENT AGENCIES.—

21 ‘‘(1) IN GENERAL.—Upon a written request

22 from a foreign law enforcement agency to provide

23 assistance in accordance with this subsection, if the

24 requesting agency states that it is investigating, or

25 engaging in enforcement proceedings against, pos-
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1 sible violations of laws prohibiting fraudulent or de2 ceptive commercial practices, or other practices sub3 stantially similar to practices prohibited by any pro4 vision of the laws administered by the Commission,

5 other than Federal antitrust laws (as defined in sec6 tion 12(5) of the International Antitrust Enforce7 ment Assistance Act of 1994 (15 U.S.C. 6211(5))),

8 to provide the assistance described in paragraph (2)

9 without requiring that the conduct identified in the

10 request constitute a violation of the laws of the

11 United States.

12 ‘‘(2) TYPE OF ASSISTANCE.—In providing as13 sistance to a foreign law enforcement agency under

14 this subsection, the Commission may—

15 ‘‘(A) conduct such investigation as the

16 Commission deems necessary to collect informa17 tion and evidence pertinent to the request for

18 assistance, using all investigative powers au19 thorized by this Act; and

20 ‘‘(B) when the request is from an agency

21 acting to investigate or pursue the enforcement

22 of civil laws, or when the Attorney General re23 fers a request to the Commission from an agen24 cy acting to investigate or pursue the enforce25 ment of criminal laws, seek and accept appoint-
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1 ment by a United States district court of Com2 mission attorneys to provide assistance to for3 eign and international tribunals and to litigants

4 before such tribunals on behalf of a foreign law

5 enforcement agency pursuant to section 1782 of

6 title 28, United States Code.

7 ‘‘(3) CRITERIA FOR DETERMINATION.—In de8 ciding whether to provide such assistance, the Com9 mission shall consider all relevant factors,

10 including—

11 ‘‘(A) whether the requesting agency has

12 agreed to provide or will provide reciprocal as13 sistance to the Commission;

14 ‘‘(B) whether compliance with the request

15 would prejudice the public interest of the

16 United States; and

17 ‘‘(C) whether the requesting agency’s in18 vestigation or enforcement proceeding concerns

19 acts or practices that cause or are likely to

20 cause injury to a significant number of persons.

21 ‘‘(4) INTERNATIONAL AGREEMENTS.—If a for22 eign law enforcement agency has set forth a legal

23 basis for requiring execution of an international

24 agreement as a condition for reciprocal assistance,

25 or as a condition for provision of materials or infor-
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1 mation to the Commission, the Commission, with

2 prior approval and ongoing oversight of the Sec3 retary of State, and with final approval of the agree4 ment by the Secretary of State, may negotiate and

5 conclude an international agreement, in the name of

6 either the United States or the Commission, for the

7 purpose of obtaining such assistance, materials, or

8 information. The Commission may undertake in

9 such an international agreement to—

10 ‘‘(A) provide assistance using the powers

11 set forth in this subsection;

12 ‘‘(B) disclose materials and information in

13 accordance with subsection (f) and section

14 21(b); and

15 ‘‘(C) engage in further cooperation, and

16 protect materials and information received from

17 disclosure, as authorized by this Act.

18 ‘‘(5) ADDITIONAL AUTHORITY.—The authority

19 provided by this subsection is in addition to, and not

20 in lieu of, any other authority vested in the Commis21 sion or any other officer of the United States.

22 ‘‘(6) LIMITATION.—The authority granted by

23 this subsection shall not authorize the Commission

24 to take any action or exercise any power with re25 spect to a bank, a savings and loan institution de-
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1 scribed in section 18(f)(3) (15 U.S.C. 57a(f)(3)), a

2 Federal credit union described in section 18(f)(4)

3 (15 U.S.C. 57a(f)(4)), or a common carrier subject

4 to the Act to regulate commerce, except in accord5 ance with the undesignated proviso following the last

6 designated subsection of section 6 (15 U.S.C. 46).

7 ‘‘(7) ASSISTANCE TO CERTAIN COUNTRIES.—

8 The Commission may not provide investigative as9 sistance under this subsection to a foreign law en10 forcement agency from a foreign state that the Sec11 retary of State has determined, in accordance with

12 section 6(j) of the Export Administration Act of

13 1979 (50 U.S.C. App. 2405(j)), has repeatedly pro14 vided support for acts of international terrorism, un15 less and until such determination is rescinded pursu16 ant to section 6(j)(4) of that Act (50 U.S.C. App.

17 2405(j)(4)).

18 ‘‘(k) REFERRAL OF EVIDENCE FOR CRIMINAL PRO19 CEEDINGS.—

20 ‘‘(1) IN GENERAL.—Whenever the Commission

21 obtains evidence that any person, partnership, or

22 corporation, either domestic or foreign, has engaged

23 in conduct that may constitute a violation of Federal

24 criminal law, to transmit such evidence to the Attor25 ney General, who may institute criminal proceedings
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1 under appropriate statutes. Nothing in this para2 graph affects any other authority of the Commission

3 to disclose information.

4 ‘‘(2) INTERNATIONAL INFORMATION.—The

5 Commission shall endeavor to ensure, with respect to

6 memoranda of understanding and international

7 agreements it may conclude, that material it has ob8 tained from foreign law enforcement agencies acting

9 to investigate or pursue the enforcement of foreign

10 criminal laws may be used for the purpose of inves11 tigation, prosecution, or prevention of violations of

12 United States criminal laws.

13 ‘‘(l) EXPENDITURES FOR COOPERATIVE ARRANGE14 MENTS.—To expend appropriated funds for—

15 ‘‘(1) operating expenses and other costs of bi16 lateral and multilateral cooperative law enforcement

17 groups conducting activities of interest to the Com18 mission and in which the Commission participates;

19 and

20 ‘‘(2) expenses for consultations and meetings

21 hosted by the Commission with foreign government

22 agency officials, members of their delegations, ap23 propriate representatives and staff to exchange views

24 concerning developments relating to the Commis25 sion’s mission, development and implementation of
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1 cooperation agreements, and provision of technical

2 assistance for the development of foreign consumer

3 protection or competition regimes, such expenses to

4 include necessary administrative and logistic ex5 penses and the expenses of Commission staff and

6 foreign invitees in attendance at such consultations

7 and meetings including—

8 ‘‘(A) such incidental expenses as meals

9 taken in the course of such attendance;

10 ‘‘(B) any travel and transportation to or

11 from such meetings; and

12 ‘‘(C) any other related lodging or subsist13 ence.’’.

14 (c) AUTHORIZATION OF APPROPRIATIONS.—The

15 Federal Trade Commission is authorized to expend appro16 priated funds not to exceed $100,000 per fiscal year for

17 purposes of section 6(l) of the Federal Trade Commission

18 Act (15 U.S.C. 46(l)) (as added by subsection (b) of this

19 section), including operating expenses and other costs of

20 the following bilateral and multilateral cooperative law en21 forcement agencies and organizations:

22 (1) The International Consumer Protection and

23 Enforcement Network.

24 (2) The International Competition Network.
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1 (3) The Mexico-U.S.-Canada Health Fraud

2 Task Force.

3 (4) Project Emptor.

4 (5) The Toronto Strategic Partnership and

5 other regional partnerships with a nexus in a Cana6 dian province.

7 (d) CONFORMING AMENDMENT.—Section 6 of the

8 Federal Trade Commission Act (15 U.S.C. 46) is amended

9 by striking ‘‘clauses (a) and (b)’’ in the proviso following

10 subsection (l) (as added by subsection (b) of this section)

11 and inserting ‘‘subsections (a), (b), and (j)’’.

12 SEC. 5. REPRESENTATION IN FOREIGN LITIGATION.

13 Section 16 of the Federal Trade Commission Act (15

14 U.S.C. 56) is amended by adding at the end the following:

15 ‘‘(c) FOREIGN LITIGATION.—

16 ‘‘(1) COMMISSION ATTORNEYS.—With the con17 currence of the Attorney General, the Commission

18 may designate Commission attorneys to assist the

19 Attorney General in connection with litigation in for20 eign courts on particular matters in which the Com21 mission has an interest.

22 ‘‘(2) REIMBURSEMENT FOR FOREIGN COUN23 SEL.—The Commission is authorized to expend ap24 propriated funds, upon agreement with the Attorney

25 General, to reimburse the Attorney General for the
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1 retention of foreign counsel for litigation in foreign

2 courts and for expenses related to litigation in for3 eign courts in which the Commission has an interest.

4 ‘‘(3) LIMITATION ON USE OF FUNDS.—Nothing

5 in this subsection authorizes the payment of claims

6 or judgments from any source other than the perma7 nent and indefinite appropriation authorized by sec8 tion 1304 of title 31, United States Code.

9 ‘‘(4) OTHER AUTHORITY.—The authority pro10 vided by this subsection is in addition to any other

11 authority of the Commission or the Attorney Gen12 eral.’’.

13 SEC. 6. SHARING INFORMATION WITH FOREIGN LAW EN14 FORCEMENT AGENCIES.

15 (a) MATERIAL OBTAINED PURSUANT TO COMPUL16 SORY PROCESS.—Section 21(b)(6) of the Federal Trade

17 Commission Act (15 U.S.C. 57b–2(b)(6)) is amended by

18 adding at the end ‘‘The custodian may make such material

19 available to any foreign law enforcement agency upon the

20 prior certification of an appropriate official of any such

21 foreign law enforcement agency, either by a prior agree22 ment or memorandum of understanding with the Commis23 sion or by other written certification, that such material

24 will be maintained in confidence and will be used only for

25 official law enforcement purposes, if—
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1 ‘‘(A) the foreign law enforcement agency has

2 set forth a bona fide legal basis for its authority to

3 maintain the material in confidence;

4 ‘‘(B) the materials are to be used for purposes

5 of investigating, or engaging in enforcement pro6 ceedings related to, possible violations of—

7 ‘‘(i) foreign laws prohibiting fraudulent or

8 deceptive commercial practices, or other prac9 tices substantially similar to practices prohib10 ited by any law administered by the Commis11 sion;

12 ‘‘(ii) a law administered by the Commis13 sion, if disclosure of the material would further

14 a Commission investigation or enforcement pro15 ceeding; or

16 ‘‘(iii) with the approval of the Attorney

17 General, other foreign criminal laws, if such

18 foreign criminal laws are offenses defined in or

19 covered by a criminal mutual legal assistance

20 treaty in force between the government of the

21 United States and the foreign law enforcement

22 agency’s government;

23 ‘‘(C) the appropriate Federal banking agency

24 (as defined in section 3(q) of the Federal Deposit

25 Insurance Act (12 U.S.C. 1813(q)) or, in the case
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1 of a Federal credit union, the National Credit Union

2 Administration, has given its prior approval if the

3 materials to be provided under subparagraph (B)

4 are requested by the foreign law enforcement agency

5 for the purpose of investigating, or engaging in en6 forcement proceedings based on, possible violations

7 of law by a bank, a savings and loan institution de8 scribed in section 18(f)(3) of the Federal Trade

9 Commission Act (15 U.S.C. 57a(f)(3)), or a Federal

10 credit union described in section 18(f)(4) of the Fed11 eral Trade Commission Act (15 U.S.C. 57a(f)(4));

12 and

13 ‘‘(D) the foreign law enforcement agency is not

14 from a foreign state that the Secretary of State has

15 determined, in accordance with section 6(j) of the

16 Export Administration Act of 1979 (50 U.S.C. App.

17 2405(j)), has repeatedly provided support for acts of

18 international terrorism, unless and until such deter19 mination is rescinded pursuant to section 6(j)(4) of

20 that Act (50 U.S.C. App. 2405(j)(4)).

21 Nothing in the preceding sentence authorizes the disclo22 sure of material obtained in connection with the adminis23 tration of the Federal antitrust laws or foreign antitrust

24 laws (as defined in paragraphs (5) and (7), respectively,

25 of section 12 of the International Antitrust Enforcement
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1 Assistance Act of 1994 (15 U.S.C. 6211)) to any officer

2 or employee of a foreign law enforcement agency.’’.

3 (b) INFORMATION SUPPLIED BY AND ABOUT FOR4 EIGN SOURCES.—Section 21(f) of the Federal Trade Com5 mission Act (15 U.S.C. 57b–2(f)) is amended to read as

6 follows:

7 ‘‘(f) EXEMPTION FROM PUBLIC DISCLOSURE.—

8 ‘‘(1) IN GENERAL.—Any material which is re9 ceived by the Commission in any investigation, a

10 purpose of which is to determine whether any person

11 may have violated any provision of the laws adminis12 tered by the Commission, and which is provided pur13 suant to any compulsory process under this Act or

14 which is provided voluntarily in place of such com15 pulsory process shall not be required to be disclosed

16 under section 552 of title 5, United States Code, or

17 any other provision of law, except as provided in

18 paragraph (2)(B) of this section.

19 ‘‘(2) MATERIAL OBTAINED FROM A FOREIGN

20 SOURCE.—

21 ‘‘(A) IN GENERAL.—Except as provided in

22 subparagraph (B) of this paragraph, the Com23 mission shall not be required to disclose under

24 section 552 of title 5, United States Code, or

25 any other provision of law—
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1 ‘‘(i) any material obtained from a for2 eign law enforcement agency or other for3 eign government agency, if the foreign law

4 enforcement agency or other foreign gov5 ernment agency has requested confidential

6 treatment, or has precluded such disclosure

7 under other use limitations, as a condition

8 of providing the material;

9 ‘‘(ii) any material reflecting a con10 sumer complaint obtained from any other

11 foreign source, if that foreign source sup12 plying the material has requested confiden13 tial treatment as a condition of providing

14 the material; or

15 ‘‘(iii) any material reflecting a con16 sumer complaint submitted to a Commis17 sion reporting mechanism sponsored in

18 part by foreign law enforcement agencies

19 or other foreign government agencies.

20 ‘‘(B) SAVINGS PROVISION.—Nothing in

21 this subsection shall authorize the Commission

22 to withhold information from the Congress or

23 prevent the Commission from complying with

24 an order of a court of the United States in an
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1 action commenced by the United States or the

2 Commission.’’.

3 SEC. 7. CONFIDENTIALITY; DELAYED NOTICE OF PROCESS.

4 (a) IN GENERAL.—The Federal Trade Commission

5 Act (15 U.S.C. 41 et seq.) is amended by inserting after

6 section 21 the following:

7 ‘‘SEC. 21A. CONFIDENTIALITY AND DELAYED NOTICE OF

8 COMPULSORY PROCESS FOR CERTAIN THIRD

9 PARTIES.

10 ‘‘(a) APPLICATION WITH OTHER LAWS.—The Right

11 to Financial Privacy Act (12 U.S.C. 3401 et seq.) and

12 chapter 121 of title 18, United States Code, shall apply

13 with respect to the Commission, except as otherwise pro14 vided in this section.

15 ‘‘(b) PROCEDURES FOR DELAY OF NOTIFICATION OR

16 PROHIBITION OF DISCLOSURE.—The procedures for delay

17 of notification or prohibition of disclosure under the Right

18 to Financial Privacy Act (12 U.S.C. 3401 et seq.) and

19 chapter 121 of title 18, United States Code, including pro20 cedures for extensions of such delays or prohibitions, shall

21 be available to the Commission, provided that, notwith22 standing any provision therein—

23 ‘‘(1) a court may issue an order delaying notifi24 cation or prohibiting disclosure (including extending

25 such an order) in accordance with the procedures of
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1 section 1109 of the Right to Financial Privacy Act

2 (12 U.S.C. 3409) (if notification would otherwise be

3 required under that Act), or section 2705 of title 18,

4 United States Code, (if notification would otherwise

5 be required under chapter 121 of that title), if the

6 presiding judge or magistrate judge finds that there

7 is reason to believe that such notification or disclo8 sure may cause an adverse result as defined in sub9 section (g) of this section; and

10 ‘‘(2) if notification would otherwise be required

11 under chapter 121 of title 18, United States Code,

12 the Commission may delay notification (including ex13 tending such a delay) upon the execution of a writ14 ten certification in accordance with the procedures

15 of section 2705 of that title if the Commission finds

16 that there is reason to believe that notification may

17 cause an adverse result as defined in subsection (g)

18 of this section.

19 ‘‘(c) EX PARTE APPLICATION BY COMMISSION.—

20 ‘‘(1) IN GENERAL.—If neither notification nor

21 delayed notification by the Commission is required

22 under the Right to Financial Privacy Act (12 U.S.C.

23 3401 et seq.) or chapter 121 of title 18, United

24 States Code, the Commission may apply ex parte to

25 a presiding judge or magistrate judge for an order
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1 prohibiting the recipient of compulsory process

2 issued by the Commission from disclosing to any

3 other person the existence of the process, notwith4 standing any law or regulation of the United States,

5 or under the constitution, or any law or regulation,

6 of any State, political subdivision of a State, terri7 tory of the United States, or the District of Colum8 bia. The presiding judge or magistrate judge may

9 enter such an order granting the requested prohibi10 tion of disclosure for a period not to exceed 60 days

11 if there is reason to believe that disclosure may

12 cause an adverse result as defined in subsection (g).

13 The presiding judge or magistrate judge may grant

14 extensions of this order of up to 30 days each in ac15 cordance with this subsection, except that in no

16 event shall the prohibition continue in force for more

17 than a total of 9 months.

18 ‘‘(2) APPLICATION.—This subsection shall

19 apply only in connection with compulsory process

20 issued by the Commission where the recipient of

21 such process is not a subject of the investigation or

22 proceeding at the time such process is issued.

23 ‘‘(3) LIMITATION.—No order issued under this

24 subsection shall prohibit any recipient from dis-
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1 closing to a Federal agency that the recipient has re2 ceived compulsory process from the Commission.

3 ‘‘(d) NO LIABILITY FOR FAILURE TO NOTIFY.—If

4 neither notification nor delayed notification by the Com5 mission is required under the Right to Financial Privacy

6 Act (12 U.S.C. 3401 et seq.) or chapter 121 of title 18,

7 United States Code, the recipient of compulsory process

8 issued by the Commission under this Act shall not be lia9 ble under any law or regulation of the United States, or

10 under the constitution, or any law or regulation, of any

11 State, political subdivision of a State, territory of the

12 United States, or the District of Columbia, or under any

13 contract or other legally enforceable agreement, for failure

14 to provide notice to any person that such process has been

15 issued or that the recipient has provided information in

16 response to such process. The preceding sentence does not

17 exempt any recipient from liability for—

18 ‘‘(1) the underlying conduct reported;

19 ‘‘(2) a failure to comply with the record reten20 tion requirements under section 1104(c) of the

21 Right to Financial Privacy Act (12 U.S.C. 3404),

22 where applicable; or

23 ‘‘(3) any failure to comply with any obligation

24 the recipient may have to disclose to a Federal agen25 cy that the recipient has received compulsory process
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1 from the Commission or intends to provide or has

2 provided information to the Commission in response

3 to such process.

4 ‘‘(e) VENUE AND PROCEDURE.—

5 ‘‘(1) IN GENERAL.—All judicial proceedings ini6 tiated by the Commission under the Right to Finan7 cial Privacy Act (12 U.S.C. 3401 et seq.), chapter

8 121 of title 18, United States Code, or this section

9 may be brought in the United States District Court

10 for the District of Columbia or any other appro11 priate United States District Court. All ex parte ap12 plications by the Commission under this section re13 lated to a single investigation may be brought in a

14 single proceeding.

15 ‘‘(2) IN CAMERA PROCEEDINGS.—Upon applica16 tion by the Commission, all judicial proceedings pur17 suant to this section shall be held in camera and the

18 records thereof sealed until expiration of the period

19 of delay or such other date as the presiding judge

20 or magistrate judge may permit.

21 ‘‘(f) SECTION NOT TO APPLY TO ANTITRUST INVES22 TIGATIONS OR PROCEEDINGS.—This section shall not

23 apply to an investigation or proceeding related to the ad24 ministration of Federal antitrust laws or foreign antitrust

25 laws (as defined in paragraphs (5) and (7), respectively,
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1 of section 12 of the International Antitrust Enforcement

2 Assistance Act of 1994 (15 U.S.C. 6211).

3 ‘‘(g) ADVERSE RESULT DEFINED.—For purposes of

4 this section the term ‘adverse result’ means—

5 ‘‘(1) endangering the life or physical safety of

6 an individual;

7 ‘‘(2) flight from prosecution;

8 ‘‘(3) the destruction of, or tampering with, evi9 dence;

10 ‘‘(4) the intimidation of potential witnesses; or

11 ‘‘(5) otherwise seriously jeopardizing an inves12 tigation or proceeding related to fraudulent or de13 ceptive commercial practices or persons involved in

14 such practices, or unduly delaying a trial related to

15 such practices or persons involved in such practices,

16 including, but not limited to, by—

17 ‘‘(A) the transfer outside the territorial

18 limits of the United States of assets or records

19 related to fraudulent or deceptive commercial

20 practices or related to persons involved in such

21 practices;

22 ‘‘(B) impeding the ability of the Commis23 sion to identify persons involved in fraudulent

24 or deceptive commercial practices, or to trace
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1 the source or disposition of funds related to

2 such practices; or

3 ‘‘(C) the dissipation, fraudulent transfer,

4 or concealment of assets subject to recovery by

5 the Commission.’’.

6 (b) CONFORMING AMENDMENT.—Section 16(a)(2) of

7 the Federal Trade Commission Act (15 U.S.C. 56(a)(2))

8 is amended—

9 (1) in subparagraph (C) by striking ‘‘or’’ after

10 the semicolon;

11 (2) in subparagraph (D) by inserting ‘‘or’’ after

12 the semicolon; and

13 (3) by inserting after subparagraph (D) the fol14 lowing:

15 ‘‘(E) under section 21A of this Act;’’.

16 SEC. 8. PROTECTION FOR VOLUNTARY PROVISION OF IN17 FORMATION.

18 The Federal Trade Commission Act (15 U.S.C. 41

19 et seq.) is further amended by adding after section 21A

20 (as added by section 7 of this Act) the following:

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

22 INFORMATION.

23 ‘‘(a) IN GENERAL.—

24 ‘‘(1) NO LIABILITY FOR PROVIDING CERTAIN

25 MATERIAL.—An entity described in paragraphs (2)
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1 or (3) of subsection (d) that voluntarily provides ma2 terial to the Commission that such entity reasonably

3 believes is relevant to—

4 ‘‘(A) a possible unfair or deceptive act or

5 practice, as defined in section 5(a) of this Act;

6 or

7 ‘‘(B) assets subject to recovery by the

8 Commission, including assets located in foreign

9 jurisdictions;

10 shall not be liable to any person under any law or

11 regulation of the United States, or under the con12 stitution, or any law or regulation, of any State, po13 litical subdivision of a State, territory of the United

14 States, or the District of Columbia, for such provi15 sion of material or for any failure to provide notice

16 of such provision of material or of intention to so

17 provide material.

18 ‘‘(2) LIMITATIONS.—Nothing in this subsection

19 shall be construed to exempt any such entity from

20 liability—

21 ‘‘(A) for the underlying conduct reported;

22 or

23 ‘‘(B) to any Federal agency for providing

24 such material or for any failure to comply with

25 any obligation the entity may have to notify a
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1 Federal agency prior to providing such material

2 to the Commission.

3 ‘‘(b) CERTAIN FINANCIAL INSTITUTIONS.—An entity

4 described in paragraph (1) of subsection (d) shall, in ac5 cordance with section 5318(g)(3) of title 31, United States

6 Code, be exempt from liability for making a voluntary dis7 closure to the Commission of any possible violation of law

8 or regulation, including—

9 ‘‘(1) a disclosure regarding assets, including as10 sets located in foreign jurisdictions—

11 ‘‘(A) related to possibly fraudulent or de12 ceptive commercial practices;

13 ‘‘(B) related to persons involved in such

14 practices; or

15 ‘‘(C) otherwise subject to recovery by the

16 Commission; or

17 ‘‘(2) a disclosure regarding suspicious

18 chargeback rates related to possibly fraudulent or

19 deceptive commercial practices.

20 ‘‘(c) CONSUMER COMPLAINTS.—Any entity described

21 in subsection (d) that voluntarily provides consumer com22 plaints sent to it, or information contained therein, to the

23 Commission shall not be liable to any person under any

24 law or regulation of the United States, or under the con25 stitution, or any law or regulation, of any State, political
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1 subdivision of a State, territory of the United States, or

2 the District of Columbia, for such provision of material

3 or for any failure to provide notice of such provision of

4 material or of intention to so provide material. This sub5 section shall not provide any exemption from liability for

6 the underlying conduct.

7 ‘‘(d) APPLICATION.—This section applies to the fol8 lowing entities, whether foreign or domestic:

9 ‘‘(1) A financial institution as defined in section

10 5312 of title 31, United States Code.

11 ‘‘(2) To the extent not included in paragraph

12 (1), a bank or thrift institution, a commercial bank

13 or trust company, an investment company, a credit

14 card issuer, an operator of a credit card system, and

15 an issuer, redeemer, or cashier of travelers’ checks,

16 money orders, or similar instruments.

17 ‘‘(3) A courier service, a commercial mail re18 ceiving agency, an industry membership organiza19 tion, a payment system provider, a consumer report20 ing agency, a domain name registrar or registry act21 ing as such, and a provider of alternative dispute

22 resolution services.

23 ‘‘(4) An Internet service provider or provider of

24 telephone services.’’.
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1 SEC. 9. STAFF EXCHANGES.

2 The Federal Trade Commission Act (15 U.S.C. 41

3 et seq.) is amended by adding after section 25 the fol4 lowing new section:

5 ‘‘SEC. 25A. STAFF EXCHANGES.

6 ‘‘(a) IN GENERAL.—The Commission may—

7 ‘‘(1) retain or employ officers or employees of

8 foreign government agencies on a temporary basis as

9 employees of the Commission pursuant to section 2

10 of this Act or section 3101 or section 3109 of title

11 5, United States Code; and

12 ‘‘(2) detail officers or employees of the Commis13 sion to work on a temporary basis for appropriate

14 foreign government agencies.

15 ‘‘(b) RECIPROCITY AND REIMBURSEMENT.—The

16 staff arrangements described in subsection (a) need not

17 be reciprocal. The Commission may accept payment or re18 imbursement, in cash or in kind, from a foreign govern19 ment agency to which this section is applicable, or pay20 ment or reimbursement made on behalf of such agency,

21 for expenses incurred by the Commission, its members,

22 and employees in carrying out such arrangements.

23 ‘‘(c) STANDARDS OF CONDUCT.—A person appointed

24 under subsection (a)(1) shall be subject to the provisions

25 of law relating to ethics, conflicts of interest, corruption,

26 and any other criminal or civil statute or regulation gov-
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1 erning the standards of conduct for Federal employees

2 that are applicable to the type of appointment.’’.

3 SEC. 10. INFORMATION SHARING WITH FINANCIAL REGU4 LATORS.

5 Section 1112(e) of the Right to Financial Privacy Act

6 of 1978 (12 U.S.C. 3412(e)) is amended by inserting ‘‘the

7 Federal Trade Commission,’’ after ‘‘the Securities and Ex8 change Commission,’’.

9 SEC. 11. AUTHORITY TO ACCEPT REIMBURSEMENTS, GIFTS,

10 AND VOLUNTARY AND UNCOMPENSATED

11 SERVICES.

12 The Federal Trade Commission Act (15 U.S.C. 41

13 et seq.) is amended—

14 (1) by redesignating section 26 as section 28;

15 and

16 (2) by inserting after section 25A, as added by

17 section 9 of this Act, the following:

18 ‘‘SEC. 26. REIMBURSEMENT OF EXPENSES.

19 ‘‘The Commission may accept payment or reimburse20 ment, in cash or in kind, from a domestic or foreign law

21 enforcement agency, or payment or reimbursement made

22 on behalf of such agency, for expenses incurred by the

23 Commission, its members, or employees in carrying out

24 any activity pursuant to a statute administered by the

25 Commission without regard to any other provision of law.
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1 Any such payments or reimbursements shall be considered

2 a reimbursement to the appropriated funds of the Com3 mission.

4 ‘‘SEC. 27. GIFTS AND VOLUNTARY AND UNCOMPENSATED

5 SERVICES.

6 ‘‘(a) IN GENERAL.—In furtherance of its functions

7 the Commission may accept, hold, administer, and use un8 conditional gifts, donations, and bequests of real, personal,

9 and other property and, notwithstanding section 1342 of

10 10 title 31, United States Code, accept voluntary and un11 compensated services.

12 ‘‘(b) LIMITATIONS.—

13 ‘‘(1) CONFLICTS OF INTEREST.—The Commis14 sion shall establish written guidelines setting forth

15 criteria to be used in determining whether the ac16 ceptance, holding, administration, or use of a gift,

17 donation, or bequest pursuant to subsection (a)

18 would reflect unfavorably upon the ability of the

19 Commission or any employee to carry out its respon20 sibilities or official duties in a fair and objective

21 manner, or would compromise the integrity or the

22 appearance of the integrity of its programs or any

23 official involved in those programs.

24 ‘‘(2) VOLUNTARY SERVICES.—A person who

25 provides voluntary and uncompensated service under
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1 subsection (a) shall be considered a Federal em2 ployee for purposes of—

3 ‘‘(A) chapter 81 of title 5, United States

4 Code, (relating to compensation for injury); and

5 ‘‘(B) the provisions of law relating to eth6 ics, conflicts of interest, corruption, and any

7 other criminal or civil statute or regulation gov8 erning the standards of conduct for Federal

9 employees.

10 ‘‘(3) TORT LIABILITY OF VOLUNTEERS.—A per11 son who provides voluntary and uncompensated serv12 ice under subsection (a), while assigned to duty,

13 shall be deemed a volunteer of a nonprofit organiza14 tion or governmental entity for purposes of the Vol15 unteer Protection Act of 1997 (42 U.S.C. 14501 et

16 seq.). Subsection (d) of section 4 of such Act (42

17 U.S.C. 14503(d)) shall not apply for purposes of any

18 claim against such volunteer.’’.

19 SEC. 12. PRESERVATION OF EXISTING AUTHORITY.

20 The authority provided by this Act, and by the Fed21 eral Trade Commission Act (15 U.S.C. 41 et seq.) and

22 the Right to Financial Privacy Act (12 U.S.C. 3401 et

23 seq.), as such Acts are amended by this Act, is in addition

24 to, and not in lieu of, any other authority vested in the
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1 Federal Trade Commission or any other officer of the

2 United States.

3 SEC. 13. REPORT.

4 Not later than 3 years after the date of enactment

5 of this Act, the Federal Trade Commission shall transmit

6 to Congress a report describing its use of and experience

7 with the authority granted by this Act, along with any rec8 ommendations for additional legislation. The report shall

9 include—

10 (1) the number of cross-border complaints re11 ceived by the Commission;

12 (2) identification of the foreign agencies to

13 which the Commission has provided nonpublic inves14 tigative information under this Act;

15 (3) the number of times the Commission has

16 used compulsory process on behalf of foreign law en17 forcement agencies pursuant to section 6 of the Fed18 eral Trade Commission Act (15 U.S.C. 46), as

19 amended by section 4 of this Act;

20 (4) a list of international agreements and

21 memoranda of understanding executed by the Com22 mission that relate to this Act;

23 (5) the number of times the Commission has

24 sought delay of notice pursuant to section 21A of

25 the Federal Trade Commission Act, as added by sec-
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1 tion 7 of this Act, and the number of times a court

2 has granted a delay;

3 (6) a description of the types of information

4 private entities have provided voluntarily pursuant to

5 section 21B of the Federal Trade Commission Act,

6 as added by section 8 of this Act;

7 (7) a description of the results of cooperation

8 with foreign law enforcement agencies under section

9 21 of the Federal Trade Commission Act (15 U.S.C.

10 57–2) as amended by section 6 of this Act;

11 (8) an analysis of whether the lack of an ex12 emption from the disclosure requirements of section

13 552 of title 5, United States Code, with regard to

14 information or material voluntarily provided relevant

15 to possible unfair or deceptive acts or practices, has

16 hindered the Commission in investigating or engag17 ing in enforcement proceedings against such prac18 tices; and

19 (9) a description of Commission litigation

20 brought in foreign courts.

Passed the Senate March 16 (legislative day, March

15), 2006.

Attest:

Secretary.
109TH CONGRESS

2D SESSION S. 1608

AN ACT

To enhance Federal Trade Commission enforceposes. border fraud and deception, and for other pur- ment against illegal spam, spyware, and cross-