[Congressional Record Volume 152, Number 135 (Friday, December 8, 2006)]
[House]
[Pages H9275-H9282]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
UNDERTAKING SPAM, SPYWARE, AND FRAUD ENFORCEMENT WITH ENFORCERS BEYOND
BORDERS ACT OF 2005
Mr. BARTON of Texas. Mr. Speaker, I ask unanimous consent that the
Committee on Energy and Commerce be discharged from further
consideration of the Senate bill (S. 1608) to enhance Federal Trade
Commission enforcement against illegal spam, spyware, and cross-border
fraud and deception, and for other purposes, and ask for its immediate
consideration in the House.
The Clerk read the title of the Senate bill.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Texas?
Mr. KUCINICH. Reserving the right to object, Mr. Speaker, I just have
an inquiry. The title of the bill seems pretty far reaching. Would you
like to, for the benefit of those of us who aren't familiar with it,
just give a couple-sentence summary that elaborates a little bit?
Mr. BARTON of Texas. Mr. Speaker, will the gentleman yield?
Mr. KUCINICH. I yield to the gentleman from Texas.
Mr. BARTON of Texas. This is just a bill on spam and enforcement of
antispam and spyware, things of this sort. The bill would provide
additional authority to the FCC to investigate spam that originates
overseas and fraudulent practices of that sort.
Mr. KUCINICH. Mr. Speaker, I withdraw my reservation.
{time} 0215
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Texas?
There was no objection.
The Clerk read the Senate bill, as follows:
S. 1608
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--
[[Page H9276]]
``(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)).
[[Page H9277]]
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--
[[Page H9278]]
``(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.
Amendment in the Nature of a Substitute Offered by Mr. Barton of Texas
Mr. BARTON of Texas. I offer an amendment in the nature of a
substitute.
The Clerk read as follows:
Amendment in the nature of a substitute offered by Mr.
Barton of Texas:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Undertaking Spam, Spyware,
And Fraud Enforcement
[[Page H9279]]
With Enforcers beyond Borders Act of 2006'' or the ``U.S.
SAFE WEB Act of 2006''.
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
[[Page H9280]]
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
[[Page H9281]]
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.
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. 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. SUNSET.
This Act, and the amendments made by this Act, shall cease
to have effect on the date that is 7 years after the date of
enactment of this Act.
SEC. 14. 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
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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.
Mr. BARTON of Texas (during the reading). Mr. Speaker, I ask
unanimous consent that the amendment be considered as read and printed
in the Record.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Texas?
There was no objection.
The amendment was agreed to.
The Senate bill was ordered to be read a third time, was read the
third time, and passed, and a motion to reconsider was laid on the
table.
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