USA SAFE WEB Act

The President recently signed the Undertaking Spam, Spyware, And Fraud Enforcement With Enforcers beyond Borders Act of 2006. The USA SAFE WEB Act gives the Federal Trade Commission expanded authority to cooperate with foreign law enforcement officials in their investigations into wrong doing in the U.S. and vice versa, as well as providing a safe harbor to internet service providers providing information to the FTC.

According to the Act, to be covered by the safe harbor, the internet service provider must believe that the information they are providing to the FTC relates to "a possible unfair or deceptive act or practice" or is relevant to "assets subject to recovery by [the FTC] including assets located in foreign jurisdictions." This provides internet service providers a way of disclosing information to the FTC when they become aware of that type of activity taking place using their servers.

One thing that is unclear in the Act is the scope of the term "Internet Service Provider." Past Acts have included a reference to a well known statute that includes the activities of web hosts within the definition of ISP. This statute does not include such a reference. It is possible, then, that a court may determine that a host does not fall within the definition of ISP. However given the nature of the statute, intent of Congress, and all other legislation with a similar goal, it's hard to imagine that a court would take a strict line on this issue.

Like most legislation with "safe harbors," it is important that you understand the parameters of what information is within the safe harbor, and what information is not. A scattershot approach to disclosure is likely to take you out to the relevant safe harbor and possibly expose you to liability to the owner of the information. In particular, you should have policies in place to govern what information is transmitted outside your company, no matter what safe harbor may be available to you.

On a side note - kudos to the Hill staffers who keep coming up with catchy acronyms for these laws. With an acronym like USA SAFE WEB Act, I can't imagine that it is not a full time job.