The Federal Trade Commission and other law enforcers face three hurdles in having a reward system for anti-spam investigations, according to a new FTC report.
The report outlines the following challenges in having a system that rewards members of the public for tracking down spammers: identifying and locating the spammer, developing sufficient evidence to prove the spammer is legally responsible for sending the spam and obtaining a monetary reward. If a reward system could be designed so that it would generate information that helps clears those hurdles, it might improve the effectiveness of enforcing The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2002, or CAN-SPAM, according to the report.
The act became effective Jan. 1, and required the FTC to conduct a study and provide a report to Congress on a CAN-SPAM “bounty system.”
The report states that persons most likely to identify a spammer and provide evidence – “high-value” information – would be “whistleblowers” or “insiders” – personal or business associates of the spammers themselves. Some have suggested that so-called “cybersleuths” – persons with above-average technical skill and knowledge of computers and the Internet – could track down spammers, but the FTC concludes that is not likely. According to the report, cybersleuths may be able to employ their talents and expertise to construct educated guesses linking seemingly unrelated spam to a common source. But much of this sleuthing is based on intuition or other inadmissible perceptions, does not definitively identity the spammer, and would not constitute admissible evidence in an enforcement action.
The report also explains that because cybersleuths do not have the power to issue or enforce subpoenas, in most instances they cannot legally obtain and supply to the commission admissible evidence of a spammer’s identity, whereabouts, or level of illegal activity. Many of the critical pieces of information necessary to prove these issues are in the possession of third parties – banks, payment processors and Internet service providers – that will not or cannot provide them to private citizens like cybersleuths who have no subpoena power.
According to the report, potential whistleblowers also would weigh the possibility of a reward against a number of opposing considerations: the likelihood of information they submitted actually being used, and whether the use would result in a successful legal proceeding; whether they would lose their own income; whether they would incur personal legal liability for their own part in the scheme; whether they would lose their anonymity; and whether they would become a target of retaliation by the spammer.
“The Commission is unable to establish with any degree of certainty the dollar amount that might be high enough to overcome these countervailing considerations, but believes that reward amounts in the range of $100,000, and in some cases as much as $250,000 are reasonable estimates,” the report states.
Even with high-dollar rewards, whistleblowers may be reluctant to come forward, the report concludes. But if Congress were to establish a reward system, it should:
- Tie eligibility to imposition of a final court order, rather than to collection of civil penalties.
- Fund reward payments through appropriations, rather than collected civil penalties.
- Restrict eligibility to insiders with high-value information.
- Minimize eligibility disputes and associated costs by exempting the FTC’s decisions on reward eligibility from judicial or administrative review.
- Establish reward amounts high enough to attract insiders to provide high-value information.
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