FTC Takes on Spam

The FTC is the right agency for the job and should be given expanded powers.

It chokes in-boxes, throttles bandwidth, insults, invites and offends. Its spam. In combating it, nearly any tactic seems justified. But amid calls that range from metered fines to hard jail time—to Microsofts filing of 15 lawsuits against alleged spammers here and abroad—the requests of one federal agency are making a lot of sense just now. Officials of the Federal Trade Commission, the top cops of commercial speech, were on Capitol Hill recently looking for new tools to combat fraudulent and deceptive e-mail. As FTC officials pointed out, e-mail is no longer a novelty, and its time to treat spam like any other business communication. We think the FTC is the right agency for the job and should be granted expanded powers, within reason, to combat spam.

At a time when spam makes up more than 48 percent of Internet e-mail traffic and costs U.S. businesses nearly $9 billion a year, the bogus messages have become "the weapon of choice for those engaged in fraud and deception," according to FTC Commissioner Orson Swindle. We support the FTCs efforts to tighten and revamp the definition of fraudulent or abusive e-mail. The narrow definitions of the marketing industry are insufficient to stem spam. FTC officials have suggested that the definition of spam must include mislabeled and unsolicited e-mail.

The FTC should also be granted permission to share investigative information with law enforcement counterparts in other nations. Some movement was made on this front when the 30-nation Organization for Economic Cooperation and Development last week set guidelines to help agencies, including the FTC, track scammers that use a variety of nefarious cross-border methods, including spam. The FTC also seeks the overturn of a District Court ruling that FTC staff cannot get data from ISPs in the discovery phase of a case; in addition, the FTC wants third-party sources to be required to keep subpoenas confidential. Without these tools, the agencys ability to probe spammers is limited.

We question, however, whether the FTCs investigative power should reach into the in-boxes of private citizens. A request from the FTC to force ISPs to turn over all spam complaints by and about their customers would give the agency access that is denied to all other agencies—namely, the receipt of e-mail communications with neither prior notice to subscribers nor a search warrant.

Also at issue is a request to give the FTC regulatory authority over telecommunications carriers to aid its efforts to battle both spam and fraudulent telemarketing. Adding another agency to the regulatory mix, which already includes the FCC, is not needed.

With those exceptions, legislators should authorize the FTC to go after spam in the same way it can go after any illegal trade activity.

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