[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1608 Engrossed in Senate (ES)]


  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
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.

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

SECTION 1. SHORT TITLE; FINDINGS; PURPOSE.

    (a) Short Title.--This Act may be cited as the ``Undertaking Spam, 
Spyware, And Fraud Enforcement With Enforcers beyond Borders Act of 
2005'' or the ``U.S. SAFE WEB Act of 2005''.
    (b) Findings.--The Congress finds the following:
            (1) The Federal Trade Commission protects consumers from 
        fraud and deception. Cross-border fraud and deception are 
        growing international problems that affect American consumers 
        and businesses.
            (2) The development of the Internet and improvements in 
        telecommunications technologies have brought significant 
        benefits to consumers. At the same time, they have also 
        provided unprecedented opportunities for those engaged in fraud 
        and deception to establish operations in one country and 
        victimize a large number of consumers in other countries.
            (3) An increasing number of consumer complaints collected 
        in the Consumer Sentinel database maintained by the Commission, 
        and an increasing number of cases brought by the Commission, 
        involve foreign consumers, foreign businesses or individuals, 
        or assets or evidence located outside the United States.
            (4) The Commission has legal authority to remedy law 
        violations involving domestic and foreign wrongdoers, pursuant 
        to the Federal Trade Commission Act. The Commission's ability 
        to obtain effective relief using this authority, however, may 
        face practical impediments when wrongdoers, victims, other 
        witnesses, documents, money and third parties involved in the 
        transaction are widely dispersed in many different 
        jurisdictions. Such circumstances make it difficult for the 
        Commission to gather all the information necessary to detect 
        injurious practices, to recover offshore assets for consumer 
        redress, and to reach conduct occurring outside the United 
        States that affects United States consumers.
            (5) Improving the ability of the Commission and its foreign 
        counterparts to share information about cross-border fraud and 
        deception, to conduct joint and parallel investigations, and to 
        assist each other is critical to achieve more timely and 
        effective enforcement in cross-border cases.
    (c) Purpose.--The purpose of this Act is to enhance the ability of 
the Federal Trade Commission to protect consumers from illegal spam, 
spyware, and cross-border fraud and deception and other consumer 
protection law violations.

SEC. 2. FOREIGN LAW ENFORCEMENT AGENCY DEFINED.

    Section 4 of the Federal Trade Commission Act (15 U.S.C. 44) is 
amended by adding at the end the following:
    ```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. 3. AVAILABILITY OF REMEDIES.

    Section 5(a) of the Federal Trade Commission Act (15 U.S.C. 45(a)) 
is amended by adding at the end the following:
            ``(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.''.

SEC. 4. POWERS OF THE COMMISSION.

    (a) Publication of Information; Reports.--Section 6(f) of the 
Federal Trade Commission Act (15 U.S.C. 46(f)) is amended--
            (1) by inserting ``(1)'' after ``such information'' the 
        first place it appears; and
            (2) by striking ``purposes.'' and inserting ``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).''.
    (b) Other Powers of the Commission.--Section 6 of the Federal Trade 
Commission Act (15 U.S.C. 46) is further amended by inserting after 
subsection (i) and before the proviso the following:
    ``(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 to the 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.''.
    (c) Authorization of Appropriations.--The Federal Trade Commission 
is authorized to expend appropriated funds not to exceed $100,000 per 
fiscal year for purposes of section 6(l) of the Federal Trade 
Commission Act (15 U.S.C. 46(l)) (as added by subsection (b) of this 
section), including operating expenses and other costs of the following 
bilateral and multilateral cooperative law enforcement agencies and 
organizations:
            (1) The International Consumer Protection and Enforcement 
        Network.
            (2) The International Competition Network.
            (3) The Mexico-U.S.-Canada Health Fraud Task Force.
            (4) Project Emptor.
            (5) The Toronto Strategic Partnership and other regional 
        partnerships with a nexus in a Canadian province.
    (d) Conforming Amendment.--Section 6 of the Federal Trade 
Commission Act (15 U.S.C. 46) is amended by striking ``clauses (a) and 
(b)'' in the proviso following subsection (l) (as added by subsection 
(b) of this section) and inserting ``subsections (a), (b), and (j)''.

SEC. 5. REPRESENTATION IN FOREIGN LITIGATION.

    Section 16 of the Federal Trade Commission Act (15 U.S.C. 56) is 
amended by adding at the end the following:
    ``(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. 6. SHARING INFORMATION WITH FOREIGN LAW ENFORCEMENT AGENCIES.

    (a) Material Obtained Pursuant to Compulsory Process.--Section 
21(b)(6) of the Federal Trade Commission Act (15 U.S.C. 57b-2(b)(6)) is 
amended by adding at the end ``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.''.
    (b) Information Supplied by and About Foreign Sources.--Section 
21(f) of the Federal Trade Commission Act (15 U.S.C. 57b-2(f)) is 
amended to read as follows:
    ``(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. 7. CONFIDENTIALITY; DELAYED NOTICE OF PROCESS.

    (a) In General.--The Federal Trade Commission Act (15 U.S.C. 41 et 
seq.) is amended by inserting after section 21 the following:

``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.''.
    (b) Conforming Amendment.--Section 16(a)(2) of the Federal Trade 
Commission Act (15 U.S.C. 56(a)(2)) is amended--
            (1) in subparagraph (C) by striking ``or'' after the 
        semicolon;
            (2) in subparagraph (D) by inserting ``or'' after the 
        semicolon; and
            (3) by inserting after subparagraph (D) the following:
                    ``(E) under section 21A of this Act;''.

SEC. 8. PROTECTION FOR VOLUNTARY PROVISION OF INFORMATION.

    The Federal Trade Commission Act (15 U.S.C. 41 et seq.) is further 
amended by adding after section 21A (as added by section 7 of this Act) 
the following:

``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 
        credit card 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. 9. STAFF EXCHANGES.

    The Federal Trade Commission Act (15 U.S.C. 41 et seq.) is amended 
by adding after section 25 the following new section:

``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. 10. INFORMATION SHARING WITH FINANCIAL REGULATORS.

    Section 1112(e) of the Right to Financial Privacy Act of 1978 (12 
U.S.C. 3412(e)) is amended by inserting ``the Federal Trade 
Commission,'' after ``the Securities and Exchange Commission,''.

SEC. 11. AUTHORITY TO ACCEPT REIMBURSEMENTS, GIFTS, AND VOLUNTARY AND 
              UNCOMPENSATED SERVICES.

    The Federal Trade Commission Act (15 U.S.C. 41 et seq.) is 
amended--
            (1) by redesignating section 26 as section 28; and
            (2) by inserting after section 25A, as added by section 9 
        of this Act, the following:

``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. 12. PRESERVATION OF EXISTING AUTHORITY.

    The authority provided by this Act, and by the Federal Trade 
Commission Act (15 U.S.C. 41 et seq.) and the Right to Financial 
Privacy Act (12 U.S.C. 3401 et seq.), as such Acts are amended by this 
Act, is in addition to, and not in lieu of, any other authority vested 
in the Federal Trade Commission or any other officer of the United 
States.

SEC. 13. REPORT.

    Not later than 3 years after the date of enactment of this Act, the 
Federal Trade Commission shall transmit to Congress a report describing 
its use of and experience with the authority granted by this Act, along 
with any recommendations for additional legislation. The report shall 
include--
            (1) the number of cross-border complaints received by the 
        Commission;
            (2) identification of the foreign agencies to which the 
        Commission has provided nonpublic investigative information 
        under this Act;
            (3) the number of times the Commission has used compulsory 
        process on behalf of foreign law enforcement agencies pursuant 
        to section 6 of the Federal Trade Commission Act (15 U.S.C. 
        46), as amended by section 4 of this Act;
            (4) a list of international agreements and memoranda of 
        understanding executed by the Commission that relate to this 
        Act;
            (5) the number of times the Commission has sought delay of 
        notice pursuant to section 21A of the Federal Trade Commission 
        Act, as added by section 7 of this Act, and the number of times 
        a court has granted a delay;
            (6) a description of the types of information private 
        entities have provided voluntarily pursuant to section 21B of 
        the Federal Trade Commission Act, as added by section 8 of this 
        Act;
            (7) a description of the results of cooperation with 
        foreign law enforcement agencies under section 21 of the 
        Federal Trade Commission Act (15 U.S.C. 57-2) as amended by 
        section 6 of this Act;
            (8) an analysis of whether the lack of an exemption from 
        the disclosure requirements of section 552 of title 5, United 
        States Code, with regard to information or material voluntarily 
        provided relevant to possible unfair or deceptive acts or 
        practices, has hindered the Commission in investigating or 
        engaging in enforcement proceedings against such practices; and
            (9) a description of Commission litigation 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 enforcement against illegal spam, 
 spyware, and cross-border fraud and deception, and for other purposes.