II 

Calendar No. 673 

109TH CONGRESS 

2D SESSION S. 4110 

To enhance Federal Trade Commission enforcement against illegal spam, 

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

IN THE SENATE OF THE UNITED STATES 

DECEMBER 7, 2006 

Mr. SMITH (for himself, Mr. INOUYE, Mr. MCCAIN, Mr. NELSON of Florida, 

Mr. BURNS, and Mr. PRYOR) introduced the following bill; which was 

read the first time 

DECEMBER 8, 2006 

Read the second time and placed on the calendar 

A BILL 

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; TABLE OF CONTENTS. 

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

5 ‘‘Undertaking Spam, Spyware, And Fraud Enforcement 


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1 With Enforcers beyond Borders Act of 2006’’ or the ‘‘U.S. 

2 SAFE WEB Act of 2006’’. 

3 (b) TABLE OF CONTENTS.—The table of contents for 

4 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Foreign law enforcement agency defined. 

Sec. 3. Availability of remedies. 

Sec. 4. Powers of the Commission. 

Sec. 5. Representation in foreign litigation. 

Sec. 6. Sharing information with foreign law enforcement agencies. 

Sec. 7. Confidentiality; Delayed notice of process. 

Sec. 8. Protection for voluntary provision of information. 

Sec. 9. Staff exchanges. 

Sec. 10. Information sharing with financial regulators. 

Sec. 11. Authority to accept reimbursements. 

Sec. 12. Preservation of existing authority. 

Sec. 13. Sunset. 

Sec. 14. Report. 

5 SEC. 2. FOREIGN LAW ENFORCEMENT AGENCY DEFINED. 

6 Section 4 of the Federal Trade Commission Act (15 

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

8 ‘‘ ‘Foreign law enforcement agency’ means— 

9 ‘‘(1) any agency or judicial authority of a for10 eign government, including a foreign state, a polit11 ical subdivision of a foreign state, or a multinational 

12 organization constituted by and comprised of foreign 

13 states, that is vested with law enforcement or inves14 tigative authority in civil, criminal, or administrative 

15 matters; and 

16 ‘‘(2) any multinational organization, to the ex17 tent that it is acting on behalf of an entity described 

18 in paragraph (1).’’. 


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1 SEC. 3. AVAILABILITY OF REMEDIES. 

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

3 (15 U.S.C. 45(a)) is amended by adding at the end the 

4 following: 

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

6 term ‘unfair or deceptive acts or practices’ includes 

7 such acts or practices involving foreign commerce 

8 that— 

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

10 foreseeable injury within the United States; or 

11 ‘‘(ii) involve material conduct occurring 

12 within the United States. 

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

14 with respect to unfair and deceptive acts or practices 

15 shall be available for acts and practices described in 

16 this paragraph, including restitution to domestic or 

17 foreign victims.’’. 

18 SEC. 4. POWERS OF THE COMMISSION. 

19 (a) PUBLICATION OF INFORMATION; REPORTS.—Sec20 tion 6(f) of the Federal Trade Commission Act (15 U.S.C. 

21 46(f)) is amended— 

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

23 the first place it appears; and 

24 (2) by striking ‘‘purposes.’’ and inserting ‘‘pur25 poses, and (2) to any officer or employee of any for26 eign law enforcement agency under the same cirVerDate Aug 31 2005 02:04 Dec 10, 2006 Jkt 059200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4110.PCS S4110

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1 cumstances that making material available to foreign 

2 law enforcement agencies is permitted under section 

3 21(b).’’. 

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

5 6 of the Federal Trade Commission Act (15 U.S.C. 46) 

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

7 before the proviso the following: 

8 ‘‘(j) INVESTIGATIVE ASSISTANCE FOR FOREIGN LAW

9 ENFORCEMENT AGENCIES.— 

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

11 from a foreign law enforcement agency to provide 

12 assistance in accordance with this subsection, if the 

13 requesting agency states that it is investigating, or 

14 engaging in enforcement proceedings against, pos15 sible violations of laws prohibiting fraudulent or de16 ceptive commercial practices, or other practices sub17 stantially similar to practices prohibited by any pro18 vision of the laws administered by the Commission, 

19 other than Federal antitrust laws (as defined in sec20 tion 12(5) of the International Antitrust Enforce21 ment Assistance Act of 1994 (15 U.S.C. 6211(5))), 

22 to provide the assistance described in paragraph (2) 

23 without requiring that the conduct identified in the 

24 request constitute a violation of the laws of the 

25 United States. 


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1 ‘‘(2) TYPE OF ASSISTANCE.—In providing as2 sistance to a foreign law enforcement agency under 

3 this subsection, the Commission may— 

4 ‘‘(A) conduct such investigation as the 

5 Commission deems necessary to collect informa6 tion and evidence pertinent to the request for 

7 assistance, using all investigative powers au8 thorized by this Act; and 

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

10 acting to investigate or pursue the enforcement 

11 of civil laws, or when the Attorney General re12 fers a request to the Commission from an agen13 cy acting to investigate or pursue the enforce14 ment of criminal laws, seek and accept appoint15 ment by a United States district court of Com16 mission attorneys to provide assistance to for17 eign and international tribunals and to litigants 

18 before such tribunals on behalf of a foreign law 

19 enforcement agency pursuant to section 1782 of 

20 title 28, United States Code. 

21 ‘‘(3) CRITERIA FOR DETERMINATION.—In de22 ciding whether to provide such assistance, the Com23 mission shall consider all relevant factors, includ24 ing— 


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1 ‘‘(A) whether the requesting agency has 

2 agreed to provide or will provide reciprocal as3 sistance to the Commission; 

4 ‘‘(B) whether compliance with the request 

5 would prejudice the public interest of the 

6 United States; and 

7 ‘‘(C) whether the requesting agency’s in8 vestigation or enforcement proceeding concerns 

9 acts or practices that cause or are likely to 

10 cause injury to a significant number of persons. 

11 ‘‘(4) INTERNATIONAL AGREEMENTS.—If a for12 eign law enforcement agency has set forth a legal 

13 basis for requiring execution of an international 

14 agreement as a condition for reciprocal assistance, 

15 or as a condition for provision of materials or infor16 mation to the Commission, the Commission, with 

17 prior approval and ongoing oversight of the Sec18 retary of State, and with final approval of the agree19 ment by the Secretary of State, may negotiate and 

20 conclude an international agreement, in the name of 

21 either the United States or the Commission, for the 

22 purpose of obtaining such assistance, materials, or 

23 information. The Commission may undertake in 

24 such an international agreement to— 


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1 ‘‘(A) provide assistance using the powers 

2 set forth in this subsection; 

3 ‘‘(B) disclose materials and information in 

4 accordance with subsection (f) and section 

5 21(b); and 

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

7 protect materials and information received from 

8 disclosure, as authorized by this Act. 

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

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

11 in lieu of, any other authority vested in the Commis12 sion or any other officer of the United States. 

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

14 this subsection shall not authorize the Commission 

15 to take any action or exercise any power with re16 spect to a bank, a savings and loan institution de17 scribed in section 18(f)(3) (15 U.S.C. 57a(f)(3)), a 

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

19 (15 U.S.C. 57a(f)(4)), or a common carrier subject 

20 to the Act to regulate commerce, except in accord21 ance with the undesignated proviso following the last 

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

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

24 The Commission may not provide investigative as25 sistance under this subsection to a foreign law enVerDate Aug 31 2005 02:04 Dec 10, 2006 Jkt 059200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4110.PCS S4110

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1 forcement agency from a foreign state that the Sec2 retary of State has determined, in accordance with 

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

4 1979 (50 U.S.C. App. 2405(j)), has repeatedly pro5 vided support for acts of international terrorism, un6 less and until such determination is rescinded pursu7 ant to section 6(j)(4) of that Act (50 U.S.C. App. 

8 2405(j)(4)). 

9 ‘‘(k) REFERRAL OF EVIDENCE FOR CRIMINAL PRO10 CEEDINGS.— 

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

12 obtains evidence that any person, partnership, or 

13 corporation, either domestic or foreign, has engaged 

14 in conduct that may constitute a violation of Federal 

15 criminal law, to transmit such evidence to the Attor16 ney General, who may institute criminal proceedings 

17 under appropriate statutes. Nothing in this para18 graph affects any other authority of the Commission 

19 to disclose information. 

20 ‘‘(2) INTERNATIONAL INFORMATION.—The 

21 Commission shall endeavor to ensure, with respect to 

22 memoranda of understanding and international 

23 agreements it may conclude, that material it has ob24 tained from foreign law enforcement agencies acting 

25 to investigate or pursue the enforcement of foreign 


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1 criminal laws may be used for the purpose of inves2 tigation, prosecution, or prevention of violations of 

3 United States criminal laws. 

4 ‘‘(l) EXPENDITURES FOR COOPERATIVE ARRANGE5 MENTS.—To expend appropriated funds for— 

6 ‘‘(1) operating expenses and other costs of bi7 lateral and multilateral cooperative law enforcement 

8 groups conducting activities of interest to the Com9 mission and in which the Commission participates; 

10 and 

11 ‘‘(2) expenses for consultations and meetings 

12 hosted by the Commission with foreign government 

13 agency officials, members of their delegations, ap14 propriate representatives and staff to exchange views 

15 concerning developments relating to the Commis16 sion’s mission, development and implementation of 

17 cooperation agreements, and provision of technical 

18 assistance for the development of foreign consumer 

19 protection or competition regimes, such expenses to 

20 include necessary administrative and logistic ex21 penses and the expenses of Commission staff and 

22 foreign invitees in attendance at such consultations 

23 and meetings including— 

24 ‘‘(A) such incidental expenses as meals 

25 taken in the course of such attendance; 


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

2 from such meetings; and 

3 ‘‘(C) any other related lodging or subsist4 ence.’’. 

5 (c) AUTHORIZATION OF APPROPRIATIONS.—The 

6 Federal Trade Commission is authorized to expend appro7 priated funds not to exceed $100,000 per fiscal year for 

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

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

10 section), including operating expenses and other costs of 

11 the following bilateral and multilateral cooperative law en12 forcement agencies and organizations: 

13 (1) The International Consumer Protection and 

14 Enforcement Network. 

15 (2) The International Competition Network. 

16 (3) The Mexico-U.S.-Canada Health Fraud 

17 Task Force. 

18 (4) Project Emptor. 

19 (5) The Toronto Strategic Partnership and 

20 other regional partnerships with a nexus in a Cana21 dian province. 

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

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

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


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

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

3 SEC. 5. REPRESENTATION IN FOREIGN LITIGATION. 

4 Section 16 of the Federal Trade Commission Act (15 

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

6 ‘‘(c) FOREIGN LITIGATION.— 

7 ‘‘(1) COMMISSION ATTORNEYS.—With the con8 currence of the Attorney General, the Commission 

9 may designate Commission attorneys to assist the 

10 Attorney General in connection with litigation in for11 eign courts on particular matters in which the Com12 mission has an interest. 

13 ‘‘(2) REIMBURSEMENT FOR FOREIGN COUN14 SEL.—The Commission is authorized to expend ap15 propriated funds, upon agreement with the Attorney 

16 General, to reimburse the Attorney General for the 

17 retention of foreign counsel for litigation in foreign 

18 courts and for expenses related to litigation in for19 eign courts in which the Commission has an interest. 

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

21 in this subsection authorizes the payment of claims 

22 or judgments from any source other than the perma23 nent and indefinite appropriation authorized by sec24 tion 1304 of title 31, United States Code. 


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1 ‘‘(4) OTHER AUTHORITY.—The authority pro2 vided by this subsection is in addition to any other 

3 authority of the Commission or the Attorney Gen4 eral.’’. 

5 SEC. 6. SHARING INFORMATION WITH FOREIGN LAW EN6 FORCEMENT AGENCIES. 

7 (a) MATERIAL OBTAINED PURSUANT TO COMPUL8 SORY PROCESS.—Section 21(b)(6) of the Federal Trade 

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

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

11 available to any foreign law enforcement agency upon the 

12 prior certification of an appropriate official of any such 

13 foreign law enforcement agency, either by a prior agree14 ment or memorandum of understanding with the Commis15 sion or by other written certification, that such material 

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

17 official law enforcement purposes, if— 

18 ‘‘(A) the foreign law enforcement agency has 

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

20 maintain the material in confidence; 

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

22 of investigating, or engaging in enforcement pro23 ceedings related to, possible violations of— 

24 ‘‘(i) foreign laws prohibiting fraudulent or 

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1 tices substantially similar to practices prohib2 ited by any law administered by the Commis3 sion; 

4 ‘‘(ii) a law administered by the Commis5 sion, if disclosure of the material would further 

6 a Commission investigation or enforcement pro7 ceeding; or 

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

9 General, other foreign criminal laws, if such 

10 foreign criminal laws are offenses defined in or 

11 covered by a criminal mutual legal assistance 

12 treaty in force between the government of the 

13 United States and the foreign law enforcement 

14 agency’s government; 

15 ‘‘(C) the appropriate Federal banking agency 

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

17 Insurance Act (12 U.S.C. 1813(q)) or, in the case 

18 of a Federal credit union, the National Credit Union 

19 Administration, has given its prior approval if the 

20 materials to be provided under subparagraph (B) 

21 are requested by the foreign law enforcement agency 

22 for the purpose of investigating, or engaging in en23 forcement proceedings based on, possible violations 

24 of law by a bank, a savings and loan institution de25 scribed in section 18(f)(3) of the Federal Trade 


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

2 credit union described in section 18(f)(4) of the Fed3 eral Trade Commission Act (15 U.S.C. 57a(f)(4)); 

4 and 

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

6 from a foreign state that the Secretary of State has 

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

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

9 2405(j)), has repeatedly provided support for acts of 

10 international terrorism, unless and until such deter11 mination is rescinded pursuant to section 6(j)(4) of 

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

13 Nothing in the preceding sentence authorizes the disclo14 sure of material obtained in connection with the adminis15 tration of the Federal antitrust laws or foreign antitrust 

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

17 of section 12 of the International Antitrust Enforcement 

18 Assistance Act of 1994 (15 U.S.C. 6211)) to any officer 

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

20 (b) INFORMATION SUPPLIED BY AND ABOUT FOR21 EIGN SOURCES.—Section 21(f) of the Federal Trade Com22 mission Act (15 U.S.C. 57b–2(f)) is amended to read as 

23 follows: 

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


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1 ‘‘(1) IN GENERAL.—Any material which is re2 ceived by the Commission in any investigation, a 

3 purpose of which is to determine whether any person 

4 may have violated any provision of the laws adminis5 tered by the Commission, and which is provided pur6 suant to any compulsory process under this Act or 

7 which is provided voluntarily in place of such com8 pulsory process shall not be required to be disclosed 

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

10 any other provision of law, except as provided in 

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

12 ‘‘(2) MATERIAL OBTAINED FROM A FOREIGN

13 SOURCE.— 

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

15 subparagraph (B) of this paragraph, the Com16 mission shall not be required to disclose under 

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

18 any other provision of law— 

19 ‘‘(i) any material obtained from a for20 eign law enforcement agency or other for21 eign government agency, if the foreign law 

22 enforcement agency or other foreign gov23 ernment agency has requested confidential 

24 treatment, or has precluded such disclosure 


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1 under other use limitations, as a condition 

2 of providing the material; 

3 ‘‘(ii) any material reflecting a con4 sumer complaint obtained from any other 

5 foreign source, if that foreign source sup6 plying the material has requested confiden7 tial treatment as a condition of providing 

8 the material; or 

9 ‘‘(iii) any material reflecting a con10 sumer complaint submitted to a Commis11 sion reporting mechanism sponsored in 

12 part by foreign law enforcement agencies 

13 or other foreign government agencies. 

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

15 this subsection shall authorize the Commission 

16 to withhold information from the Congress or 

17 prevent the Commission from complying with 

18 an order of a court of the United States in an 

19 action commenced by the United States or the 

20 Commission.’’. 

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

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

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

24 section 21 the following: 


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

2 COMPULSORY PROCESS FOR CERTAIN THIRD 

3 PARTIES. 

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

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

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

7 with respect to the Commission, except as otherwise pro8 vided in this section. 

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

10 PROHIBITION OF DISCLOSURE.—The procedures for delay 

11 of notification or prohibition of disclosure under the Right 

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

13 chapter 121 of title 18, United States Code, including pro14 cedures for extensions of such delays or prohibitions, shall 

15 be available to the Commission, provided that, notwith16 standing any provision therein— 

17 ‘‘(1) a court may issue an order delaying notifi18 cation or prohibiting disclosure (including extending 

19 such an order) in accordance with the procedures of 

20 section 1109 of the Right to Financial Privacy Act 

21 (12 U.S.C. 3409) (if notification would otherwise be 

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

23 United States Code, (if notification would otherwise 

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

25 presiding judge or magistrate judge finds that there 

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1 sure may cause an adverse result as defined in sub2 section (g) of this section; and 

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

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

5 the Commission may delay notification (including ex6 tending such a delay) upon the execution of a writ7 ten certification in accordance with the procedures 

8 of section 2705 of that title if the Commission finds 

9 that there is reason to believe that notification may 

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

11 of this section. 

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

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

14 delayed notification by the Commission is required 

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

16 3401 et seq.) or chapter 121 of title 18, United 

17 States Code, the Commission may apply ex parte to 

18 a presiding judge or magistrate judge for an order 

19 prohibiting the recipient of compulsory process 

20 issued by the Commission from disclosing to any 

21 other person the existence of the process, notwith22 standing any law or regulation of the United States, 

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

24 of any State, political subdivision of a State, terri25 tory of the United States, or the District of ColumVerDate Aug 31 2005 02:04 Dec 10, 2006 Jkt 059200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S4110.PCS S4110

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1 bia. The presiding judge or magistrate judge may 

2 enter such an order granting the requested prohibi3 tion of disclosure for a period not to exceed 60 days 

4 if there is reason to believe that disclosure may 

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

6 The presiding judge or magistrate judge may grant 

7 extensions of this order of up to 30 days each in ac8 cordance with this subsection, except that in no 

9 event shall the prohibition continue in force for more 

10 than a total of 9 months. 

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

12 apply only in connection with compulsory process 

13 issued by the Commission where the recipient of 

14 such process is not a subject of the investigation or 

15 proceeding at the time such process is issued. 

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

17 subsection shall prohibit any recipient from dis18 closing to a Federal agency that the recipient has re19 ceived compulsory process from the Commission. 

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

21 neither notification nor delayed notification by the Com22 mission is required under the Right to Financial Privacy 

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

24 United States Code, the recipient of compulsory process 

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1 ble under any law or regulation of the United States, or 

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

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

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

5 contract or other legally enforceable agreement, for failure 

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

7 issued or that the recipient has provided information in 

8 response to such process. The preceding sentence does not 

9 exempt any recipient from liability for— 

10 ‘‘(1) the underlying conduct reported; 

11 ‘‘(2) a failure to comply with the record reten12 tion requirements under section 1104(c) of the 

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

14 where applicable; or 

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

16 the recipient may have to disclose to a Federal agen17 cy that the recipient has received compulsory process 

18 from the Commission or intends to provide or has 

19 provided information to the Commission in response 

20 to such process. 

21 ‘‘(e) VENUE AND PROCEDURE.— 

22 ‘‘(1) IN GENERAL.—All judicial proceedings ini23 tiated by the Commission under the Right to Finan24 cial Privacy Act (12 U.S.C. 3401 et seq.), chapter 

25 121 of title 18, United States Code, or this section 


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1 may be brought in the United States District Court 

2 for the District of Columbia or any other appro3 priate United States District Court. All ex parte ap4 plications by the Commission under this section re5 lated to a single investigation may be brought in a 

6 single proceeding. 

7 ‘‘(2) IN CAMERA PROCEEDINGS.—Upon applica8 tion by the Commission, all judicial proceedings pur9 suant to this section shall be held in camera and the 

10 records thereof sealed until expiration of the period 

11 of delay or such other date as the presiding judge 

12 or magistrate judge may permit. 

13 ‘‘(f) SECTION NOT TO APPLY TO ANTITRUST INVES14 TIGATIONS OR PROCEEDINGS.—This section shall not 

15 apply to an investigation or proceeding related to the ad16 ministration of Federal antitrust laws or foreign antitrust 

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

18 of section 12 of the International Antitrust Enforcement 

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

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

21 this section the term ‘adverse result’ means— 

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

23 an individual; 

24 ‘‘(2) flight from prosecution; 


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1 ‘‘(3) the destruction of, or tampering with, evi2 dence; 

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

4 ‘‘(5) otherwise seriously jeopardizing an inves5 tigation or proceeding related to fraudulent or de6 ceptive commercial practices or persons involved in 

7 such practices, or unduly delaying a trial related to 

8 such practices or persons involved in such practices, 

9 including, but not limited to, by— 

10 ‘‘(A) the transfer outside the territorial 

11 limits of the United States of assets or records 

12 related to fraudulent or deceptive commercial 

13 practices or related to persons involved in such 

14 practices; 

15 ‘‘(B) impeding the ability of the Commis16 sion to identify persons involved in fraudulent 

17 or deceptive commercial practices, or to trace 

18 the source or disposition of funds related to 

19 such practices; or 

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

21 or concealment of assets subject to recovery by 

22 the Commission.’’. 

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

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

25 is amended— 


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

2 the semicolon; 

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

4 the semicolon; and 

5 (3) by inserting after subparagraph (D) the fol6 lowing: 

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

8 SEC. 8. PROTECTION FOR VOLUNTARY PROVISION OF IN9 FORMATION. 

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

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

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

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

14 INFORMATION. 

15 ‘‘(a) IN GENERAL.— 

16 ‘‘(1) NO LIABILITY FOR PROVIDING CERTAIN

17 MATERIAL.—An entity described in paragraphs (2) 

18 or (3) of subsection (d) that voluntarily provides ma19 terial to the Commission that such entity reasonably 

20 believes is relevant to— 

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

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

23 or 


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

2 Commission, including assets located in foreign 

3 jurisdictions; 

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

5 regulation of the United States, or under the con6 stitution, or any law or regulation, of any State, po7 litical subdivision of a State, territory of the United 

8 States, or the District of Columbia, for such provi9 sion of material or for any failure to provide notice 

10 of such provision of material or of intention to so 

11 provide material. 

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

13 shall be construed to exempt any such entity from 

14 liability— 

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

16 or 

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

18 such material or for any failure to comply with 

19 any obligation the entity may have to notify a 

20 Federal agency prior to providing such material 

21 to the Commission. 

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

23 described in paragraph (1) of subsection (d) shall, in ac24 cordance with section 5318(g)(3) of title 31, United States 

25 Code, be exempt from liability for making a voluntary disVerDate Aug 31 2005 02:04 Dec 10, 2006 Jkt 059200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\S4110.PCS S4110

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1 closure to the Commission of any possible violation of law 

2 or regulation, including— 

3 ‘‘(1) a disclosure regarding assets, including as4 sets located in foreign jurisdictions— 

5 ‘‘(A) related to possibly fraudulent or de6 ceptive commercial practices; 

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

8 practices; or 

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

10 Commission; or 

11 ‘‘(2) a disclosure regarding suspicious 

12 chargeback rates related to possibly fraudulent or 

13 deceptive commercial practices. 

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

15 in subsection (d) that voluntarily provides consumer com16 plaints sent to it, or information contained therein, to the 

17 Commission shall not be liable to any person under any 

18 law or regulation of the United States, or under the con19 stitution, or any law or regulation, of any State, political 

20 subdivision of a State, territory of the United States, or 

21 the District of Columbia, for such provision of material 

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

23 material or of intention to so provide material. This sub24 section shall not provide any exemption from liability for 

25 the underlying conduct. 


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•S 4110 PCS 

1 ‘‘(d) APPLICATION.—This section applies to the fol2 lowing entities, whether foreign or domestic: 

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

4 5312 of title 31, United States Code. 

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

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

7 or trust company, an investment company, a credit 

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

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

10 money orders, or similar instruments. 

11 ‘‘(3) A courier service, a commercial mail re12 ceiving agency, an industry membership organiza13 tion, a payment system provider, a consumer report14 ing agency, a domain name registrar or registry act15 ing as such, and a provider of alternative dispute 

16 resolution services. 

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

18 telephone services.’’. 

19 SEC. 9. STAFF EXCHANGES. 

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

21 et seq.) is amended by adding after section 25 the fol22 lowing new section: 

23 ‘‘SEC. 25A. STAFF EXCHANGES. 

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


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•S 4110 PCS 

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

2 foreign government agencies on a temporary basis as 

3 employees of the Commission pursuant to section 2 

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

5 5, United States Code; and 

6 ‘‘(2) detail officers or employees of the Commis7 sion to work on a temporary basis for appropriate 

8 foreign government agencies. 

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

10 staff arrangements described in subsection (a) need not 

11 be reciprocal. The Commission may accept payment or re12 imbursement, in cash or in kind, from a foreign govern13 ment agency to which this section is applicable, or pay14 ment or reimbursement made on behalf of such agency, 

15 for expenses incurred by the Commission, its members, 

16 and employees in carrying out such arrangements. 

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

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

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

20 and any other criminal or civil statute or regulation gov21 erning the standards of conduct for Federal employees 

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


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•S 4110 PCS 

1 SEC. 10. INFORMATION SHARING WITH FINANCIAL REGU2 LATORS. 

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

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

5 Federal Trade Commission,’’ after ‘‘the Securities and Ex6 change Commission,’’. 

7 SEC. 11. AUTHORITY TO ACCEPT REIMBURSEMENTS. 

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

9 et seq.) is amended— 

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

11 and 

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

13 section 9 of this Act, the following: 

14 ‘‘SEC. 26. REIMBURSEMENT OF EXPENSES. 

15 ‘‘The Commission may accept payment or reimburse16 ment, in cash or in kind, from a domestic or foreign law 

17 enforcement agency, or payment or reimbursement made 

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

19 Commission, its members, or employees in carrying out 

20 any activity pursuant to a statute administered by the 

21 Commission without regard to any other provision of law. 

22 Any such payments or reimbursements shall be considered 

23 a reimbursement to the appropriated funds of the Com24 mission.’’. 


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•S 4110 PCS 

1 SEC. 12. PRESERVATION OF EXISTING AUTHORITY. 

2 The authority provided by this Act, and by the Fed3 eral Trade Commission Act (15 U.S.C. 41 et seq.) and 

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

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

6 to, and not in lieu of, any other authority vested in the 

7 Federal Trade Commission or any other officer of the 

8 United States. 

9 SEC. 13. SUNSET. 

10 This Act, and the amendments made by this Act, 

11 shall cease to have effect on the date that is 7 years after 

12 the date of enactment of this Act. 

13 SEC. 14. REPORT. 

14 Not later than 3 years after the date of enactment 

15 of this Act, the Federal Trade Commission shall transmit 

16 to Congress a report describing its use of and experience 

17 with the authority granted by this Act, along with any rec18 ommendations for additional legislation. The report shall 

19 include— 

20 (1) the number of cross-border complaints re21 ceived by the Commission; 

22 (2) identification of the foreign agencies to 

23 which the Commission has provided nonpublic inves24 tigative information under this Act; 

25 (3) the number of times the Commission has 

26 used compulsory process on behalf of foreign law enVerDate Aug 31 2005 02:04 Dec 10, 2006 Jkt 059200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\S4110.PCS S4110

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•S 4110 PCS 

1 forcement agencies pursuant to section 6 of the Fed2 eral Trade Commission Act (15 U.S.C. 46), as 

3 amended by section 4 of this Act; 

4 (4) a list of international agreements and 

5 memoranda of understanding executed by the Com6 mission that relate to this Act; 

7 (5) the number of times the Commission has 

8 sought delay of notice pursuant to section 21A of 

9 the Federal Trade Commission Act, as added by sec10 tion 7 of this Act, and the number of times a court 

11 has granted a delay; 

12 (6) a description of the types of information 

13 private entities have provided voluntarily pursuant to 

14 section 21B of the Federal Trade Commission Act, 

15 as added by section 8 of this Act; 

16 (7) a description of the results of cooperation 

17 with foreign law enforcement agencies under section 

18 21 of the Federal Trade Commission Act (15 U.S.C. 

19 57–2) as amended by section 6 of this Act; 

20 (8) an analysis of whether the lack of an ex21 emption from the disclosure requirements of section 

22 552 of title 5, United States Code, with regard to 

23 information or material voluntarily provided relevant 

24 to possible unfair or deceptive acts or practices, has 

25 hindered the Commission in investigating or engagVerDate Aug 31 2005 02:04 Dec 10, 2006 Jkt 059200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\S4110.PCS S4110

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1 ing in enforcement proceedings against such prac2 tices; and 

3 (9) a description of Commission litigation 

4 brought in foreign courts. 


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Calendar No. 673 

109TH CONGRESS 

2D SESSION S. 4110 

A BILL 

To enhance Federal Trade Commission enforceposes. border fraud and deception, and for other pur- ment against illegal spam, spyware, and crossDECEMBER 8, 2006 

Read the second time and placed on the calendar 


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