Dissenting Statement of
Commissioner Orson Swindle

Internet Omnibus Investigational Resolution

File No. P994412

I have voted against issuance of this compulsory process resolution because of its breadth and the lack of any compelling justification for it. The resolution applies to investigations of any person or business that advertises, sells, or promotes any good or service on the Internet. In effect, it vitiates full Commission authority to issue compulsory process resolutions. Just about any business is likely in the next few years to advertise, sell, or promote its goods or services on the Internet, thus bringing almost any investigation within the scope of this resolution.

Compulsory process, where warranted, is a strong and useful investigative tool. Nonetheless, it can impose considerable burdens on the recipients of Civil Investigative Demands (CIDs). The Commission should not essentially delegate nearly all of its authority in this area to staff, subject to review by only the single Commissioner who signs CIDs issued under the resolution. To do so removes the checks and balances inherent in full Commission review of compulsory process resolutions.

Moreover, in some cases, new types of law violations involving the Internet may raise policy issues that should come before the full Commission at the earliest possible opportunity. The public interest would be best served if all Commissioners had an opportunity to evaluate the authorization of compulsory process in such matters. This all-encompassing resolution hinders direct, proactive review by the full Commission of Internet-related enforcement issues. Delaying Commission assessment of such policy matters until after investigations mature into settlements or complaint recommendations or are closed, or simply informing the Commission after the fact about staff's use of the resolution, does not permit such a review.

Ultimately, this resolution's exceptionally broad delegation of power to staff simply is unnecessary. I recognize that the Electronic Communications Privacy Act frequently requires compulsory process in Internet investigations and that we often need to move quickly because targets seek to hide their identity, move assets, or change their advertising. But is sweeping all Internet commerce under one resolution the only way to address these problems? Before we stigmatize the Internet as a means of commerce particularly prone to fraud -- thereby undermining the goal of promoting consumer confidence in online commerce -- we should first try alternative forms of compulsory process that do not entail the significant costs I have described.

Historically, the Commission has acted very rapidly on requests for compulsory process resolutions, whether they were omnibus resolutions tailored to specific types of law violations or special resolutions authorizing compulsory process in discrete investigations. Although staff is unable at this point to anticipate and define new types of high-tech violations that could be targeted by narrower omnibus resolutions circumscribed by subject matter, they have not shown that special resolutions are inadequate. In the past year, only one special compulsory process resolution -- and only a few tailored omnibus resolutions -- came before the Commission from the Bureau of Consumer Protection. It is premature to conclude that these alternatives involve so much delay or impose so great a burden on Commission resources as to warrant abandoning the benefits of full Commission review of process resolutions in favor of a single resolution of unprecedented breadth.