US SAFE WEB Act

FTC v. Accusearch, Inc: No Communications Decency Act Immunity Where Website Operator Qualified As Developer of Material Posted on Website

On July 2, 2009, the FTC issued a press release announcing that a federal court had ordered “key players in an international spam ring to give up $3.7 million that they made by sending out illegal email messages pitching bogus hoodia weight-loss products and a ‘human growth hormone’ pill.” The FTC claimed that this was the first case in which the FTC used the US SAFE WEB Act.

The US SAFE WEB Act was a Sen. John McCain-sponsored bill that was enacted in December 2006 and codified as portions of 15 U.S.C. §§ 44, 45, 46, 56 and 57-57c. With some exceptions, the US SAFE WEB Act does not create new areas of prohibited conduct for which a person could be subject to criminal or civil liability. Rather, it primarily provides the FTC with new powers to cooperate with foreign law enforcement agencies and new protections for persons who voluntarily provide information to aid FTC investigations.

For example, the Act permits the FTC to provide investigative assistance to foreign law enforcement agencies, including conducting investigations to collect information and evidence for these foreign agencies. 15 U.S.C. § 46(j). It also authorizes the FTC to spend funds for the costs of multilateral cooperative law enforcement groups. 15 U.S.C. § 46(l). This would seem to permit the FTC and foreign governments to create super-police agencies which could cooperate to gather information around the globe. However, the original Act limited these funds to $100,000 and specified that they had to be spent for the costs of five specific international groups. So while the concept of international policing agencies seems exciting, at least as of December 2006, Congress intended these to be quite modest efforts.

The Act permits the FTC to share investigative materials, such as documents, written reports or answers to questions and transcripts of oral testimony with foreign law enforcement agencies. 15 U.S.C. § 57b-2(6). However, the foreign government has to show that the materials are to be used to investigate or enforce foreign laws prohibiting fraudulent or deceptive commercial practices that are “substantially similar” to the practices prohibited by U.S. law.

The Act also contains secrecy provisions, so that the FTC does not have to disclose information provided by foreign sources under FOIA or other provisions of U.S. law. 15 U.S.C.§ 57b-2(f). The bill provides that the FTC was subject to the Right To Financial Privacy Act. However, it also specifies procedures under which disclosures mandated under the Right To Financial Privacy Act can be delayed or prohibited if it would jeopardize an FTC investigation. 15 U.S.C. § 57(b)-2a.