Us Search, Inc

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IN THE MATTER OF US SEARCH, INC. anp US SEARCH, LLC CONSENT ORDER, ETC., INREGARD TO ALLEGED VIOLATIONS OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT Docket No. C-4317; File No. 102 3131 Filed March 14, 2011 — Decision March 14, 2011 This consent order addresses allegations that US Search, Inc. and US Search, LLC (collectively “US Search”) engaged in deceptive acts or practices, in violation of Section 5 of the FTC Act, by misrepresenting that the purchase or use of its PrivacyLock service would prevent a consumer’s name and address from appearing on US Search’s website, in its advertisements, or in its search results. US Search, who operates an online data broker service, sells publicly available information about consumers to other consumers through its website, www.ussearch.com. This publicly available information includes a consumer’s name, age, address, phone numbers, email addresses, aliases, maiden name, death records, address history, information about friends, associates, and relatives, marriage and divorce information, bankruptcies, tax liens, civil lawsuits, criminal records, and home values. The consent order includes injunctive relief that enjoins US Search from misrepresenting the effectiveness of its PrivacyLock service or any other service offered to consumers that will allow consumers to remove publicly available information from US Search’s search results, websites, and advertisements. The order also requires US Search to refund any money consumers paid for the PrivacyLock service. Under the proposed order, US Search must credit consumers’ credit and debit card accounts and notify consumers via email that such credits were made. Participants For the Commission: Amanda Koulousias and Anthony Rodriguez.

For the Respondents: Becky Burr, WilmerHale. COMPLAINT The Federal Trade Commission, having reason to believe that US Search, Inc., a corporation, and US Search, LLC, a limited liability US SEARCH, INC. 185 Complaint company, have violated the provisions of the Federal Trade Commission Act, and it appearing to the Commission that this proceeding is in the public interest, alleges: 1. Respondent US Search, Inc. is a Delaware corporation with its principal office or place of business at 600 Corporate Pointe, Culver City, California 90230.

2. Respondent US Search, LLC is a Delaware limited liability company with its principal office or place of business at 600 Corporate Pointe, Culver City, California 90230. US Search, LLC is a wholly owned subsidiary of US Search, Inc. 3. The acts and practices of respondents alleged in this complaint have been in or affecting commerce, as “commerce” is defined in Section 4 of the Federal Trade Commission Act. 4. Respondents sell online search services to the public through an online data broker website, www.ussearch.com. For a fee, anyone can go on the website and search publicly available information on individuals by entering certain information about them, such as a name, phone number, or address. Respondents generate search results that may include information such as a consumer’s name, age, address, phone numbers, aliases, maiden name, death record, address history, relatives, neighbors, marriage and _ divorce, associates/roommates, property, bankruptcies, tax liens, civil judgments, lawsuits, state criminal records, small claims and civil judgments, home value, email address, and publicly available online profiles. Respondents’ “Reverse Lookup” service can return the name of an individual associated with a particular phone number or property address.

5. Since June 2009, respondents have offered a “PrivacyLock” service to allow consumers to block the appearance of their name and address in respondents’ search results. Respondents charged $10 for their “PrivacyLock” service, with certain exceptions. If consumers checked a box indicating that they were victims of identity theft, victims of domestic violence, law enforcement officials, or public VOLUME 151 Complaint and/or elected officials, and provided supporting documentation, respondents waived the $10 fee. Respondents stopped charging the fee on or about May 24, 2010.

6. During the time period that respondents offered and charged a fee for the “PrivacyLock” service, approximately 6,775 consumers requested the service, of whom 4,960 consumers paid the $10 fee. 7. The “PrivacyLock” service offered by respondents was advertised on respondents’ privacy policy page on their website. The privacy policy stated: “If you want to remove your information from our site, please click here to learn how” (the words “click here” were a hyperlink that redirected consumers to the “PrivacyLock” page). 8. In connection with the sale of the “Privacy Lock” service, respondents made the following representation on their privacy policy page, as well as on the “PrivacyLock” page: a. “US Search obtains most of the information for our products and services from partners who generally obtain it from public records. We do not maintain or control the public records, and we are unable to remove your name from any public records. We do however offer individuals the ability to lock their records on US Search in accordance with laws and US Search policy. Our PrivacyLock service will prevent your name and address from appearing on the (1) US Search Website, (2) US Search Advertisements (advertisements “powered by US Search’), and (3) US Search Reports. There is a service charge of $10.00 per request. Please allow up to 2 business days for your records to be locked. We guarantee that your record will be locked for a period of 1 year.”

9. Additionally, in standard communications with consumers who inquired about the “PrivacyLock” service respondents represented the following:

US SEARCH, INC. 187 Complaint a. “What do I get for my money?”

“When you enroll in the US Search PrivacyLock Service, you are taking a valuable step in securing your personal information. While many information providers either don’t offer or don’t honor privacy solutions, US Search quickly processes each request and provides verifiable results that can be backed by our | year promise.” b. “Why do I have to pay?”

“In addition to removing your information from the US Search website, your information will be suppressed from our affiliate and advertisers websites as well. Once again, this process is backed by our 1 year promise to remove any listings that may reappear at your request.” 10. Through the means described in Paragraphs 8 and 9, respondents represented, directly or indirectly, expressly or by implication, that the purchase or use of respondents’ “PrivacyLock” would prevent a consumer’s name from appearing on respondents’ website, in respondents’ advertisements, and in respondents’ search results.

11. ‘In truth and in fact, in many instances respondents’ “PrivacyLock” does not prevent the names of consumers from appearing on respondents’ website, in respondents’ advertisements, and in respondents’ search results. The “PrivacyLock” does not block a consumer’s information from appearing in the results of a “reverse search” on the consumer’s phone number or address, or in a search of the consumer’s address in real estate records. Further, the “PrivacyLock” does not block a consumer’s name from showing up as an associate of someone else in a search for another person’s name. When consumers change addresses, new records may be generated that are not be subject to the “PrivacyLock.” When consumers have multiple records in existence (e.g., John T. Smith and John Thomas Smith), the “PrivacyLock” may apply to only one VOLUME 151 Complaint record. Therefore, the representation set forth in Paragraph 10 was, and is, false or misleading.

12. The acts and practices of respondents as alleged in this complaint constitute deceptive acts or practices in or affecting commerce in violation of Section 5(a) of the Federal Trade Commission Act.

THEREFORE, the Federal Trade Commission, this fourteenth day of March, 2011, has issued this complaint against respondents. By the Commission.

DECISION AND ORDER The Federal Trade Commission having initiated an investigation of certain acts and practices of the Respondents named in the caption hereof, and the Respondents having been furnished thereafter with a copy of a draft Complaint that the Bureau of Consumer Protection proposed to present to the Commission for its consideration and which, if issued by the Commission, would charge the Respondents with violation of the Federal Trade Commission Act,15 U.S.C. § 45 et Seq;

The Respondents, their attorney, and counsel for the Commission having thereafter executed an Agreement Containing Consent Order (“Consent Agreement”), an admission by the Respondents of all the jurisdictional facts set forth in the aforesaid draft Complaint, a statement that the signing of said Consent Agreement is for settlement purposes only and does not constitute an admission by Respondents that the law has been violated as alleged in such Complaint, or that the facts as alleged in such Complaint, other than US SEARCH, INC. 189 Decision and Order jurisdictional facts, are true, and waivers and other provisions as required by the Commission's Rules; and The Commission having thereafter considered the matter and having determined that it has reason to believe Respondents have violated the said Act, and that a Complaint should issue stating its charges in that respect, and having thereupon accepted the executed Consent Agreement and placed such Consent Agreement on the public record for a period of thirty (30) days, and having duly considered the comments filed thereafter by interested persons pursuant to Commission Rule 2.34, 16 C.F.R. § 2.34, now in further conformity with the procedure described in Commission Rule 2.34, the Commission hereby issues its Complaint, makes the following jurisdictional findings and enters the following Order: l.a. | Respondent US Search, Inc. is a Delaware corporation with its principal office or place of business at 600 Corporate Pointe, Culver City, California 90230. 1.b. Respondent US Search, LLC is a Delaware limited liability company with its principal office or place of business at 600 Corporate Pointe, Culver City, California 90230. US Search, LLC is a wholly owned subsidiary of US Search Inc.

2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the Respondents, and the proceeding is in the public interest. ORDER DEFINITIONS For purposes of this order, the following definitions shall apply: 1. Unless otherwise specified, “respondents” shall mean US Search, Inc., a corporation, and US Search, LLC, a VOLUME 151 Decision and Order limited liability company, their successors and assigns and their officers; and each of the above’s agents, representatives, and employees.

2. “Clearly and prominently” shall mean that the required disclosures are unavoidable and of a type, size, and location sufficiently noticeable for an ordinary consumer to read and comprehend them, in print that contrasts with the background on which they appear, and presented in understandable language and syntax.

3. “Commerce” shall mean as defined in Section 4 of the Federal Trade Commission Act, 15 U.S.C. § 44. I.

IT IS ORDERED that respondents, directly or through any corporation, subsidiary, division, or other device, in connection with the advertising, promotion, offering for sale, sale, or distribution of “PrivacyLock” or any other service offered to consumers that will allow consumers to remove publicly available information from respondents’ search results, websites, or advertisements, shall not misrepresent, in any manner, expressly or by implication, the effectiveness of such service.

I.

IT IS FURTHER ORDERED that respondents, directly or through any corporation, subsidiary, division, or other device, in connection with the advertising, promotion, offering for sale, sale, or distribution of “PrivacyLock” or any other service offered to consumers that will allow consumers to remove publicly available information from respondents’ search results, websites, or advertisements, shall not make any representation, in any manner, expressly or by implication, about the effectiveness of such service, unless they disclose, clearly and prominently, any material limitations regarding such service, including, but not limited to, US SEARCH, INC. 191 Decision and Order (1) any limitations on the duration of the removal; and (2) any circumstances under which information about the consumers will not be removed or will reappear.

iI.

IT IS FURTHER ORDERED that respondents, directly or through any corporation, subsidiary, division, or other device, shall: A.

Upon issuance of this order, provide a full and complete refund to any consumer who requested “PrivacyLock” and was assessed a charge for such service, by crediting the credit or debit card used to pay for such service, and providing notice of the refund through an email message sent to affected consumers;

The email message shall also include contact information for respondents, including name, address and a toll-free telephone number, for consumers to use to contact respondents and receive a full and complete refund if, for any reason, respondents are unable to credit the consumer’s credit or debit card; and For a period of one (1) year after the date of issuance of this order, provide notice to consumers of the refund required by Section III.B. of this order. Such notice shall be clearly and prominently displayed on respondents’ website www.ussearch.com; and Within one year of the issuance of this order, respondents shall provide a full and complete accounting to the Commission of all refunds paid to consumers, including amounts paid, and the names and addresses (email and US mail) of consumers who received the refunds. Respondents shall also include in such an accounting all amounts that were not refunded to consumers, for whatever reason. Any amount not refunded to consumers VOLUME 151 Decision and Order shall be deposited with the United States Treasury as disgorgement. No portion of this payment to the United States Treasury shall be deemed a payment of any fine, penalty, or punitive assessment.

IV.

IT IS FURTHER ORDERED that for a period of five (5) years after the last date of dissemination of any representation covered by this order, respondents US Search, Inc. and US Search, LLC, and their successors and assigns, shall maintain and upon request make available to the Federal Trade Commission for inspection and copying:

A. All advertisements and promotional materials containing the representation;

B. Complaints and refund requests (whether received directly or indirectly, such as through a third party) and any responses to those complaints or requests; C. Allrecords and documents necessary to demonstrate full compliance with each provision of this order, including but not limited to, copies of acknowledgments of receipt of this order required by Section V. and all reports submitted to the FTC pursuant to Section VII. V.

IT IS FURTHER ORDERED that, for a period of five (5) years from the date of issuance of this order, respondents US Search, Inc. and US Search, LLC, and their successors and assigns, shall deliver a copy of this order to all current and future principals, officers, directors, and managers who engage in conduct related to the subject matter of the order, and any business entity resulting from any change in structure set forth in Section VI. For current personnel, delivery shall be within five (5) days of service of this order. For new US SEARCH, INC. 193 Decision and Order personnel, delivery shall occur prior to them assuming their responsibilities. For any business entity resulting from any change in structure set forth in Section VI, delivery shall be at least ten (10) days prior to the change in structure. Respondents must secure a signed and dated statement acknowledging receipt ofthe order within thirty (30) days of delivery from all persons receiving a copy of the order pursuant to this section.

VI.

IT IS FURTHER ORDERED that, respondents US Search, Inc. and US Search, LLC, and their successors and assigns, shall notify the Commission at least thirty (30) days prior to any change in the corporation or business entity that may affect compliance obligations arising under this order, including but not limited to: incorporation or other organization; a dissolution, assignment, sale, merger, or other action; the creation or dissolution of a subsidiary, parent, or affiliate that engages in any acts or practices subject to this order; the proposed filing of a bankruptcy petition; or a change in the business name or address. Provided, however, that, with respect to any proposed change in the corporation or business entity about which a respondent learns less than thirty (30) days prior to the date such action is to take place, such respondent shall notify the Commission as soon as is practicable after obtaining such knowledge. Unless otherwise directed by a representative of the Commission, all notices required by this Part shall be sent by overnight courier (not the U.S. Postal Service) to the Associate Director of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580, with the subject line FTC v. US Search, Inc. and US Search, LLC. Provided, however, that, in lieu of overnight courier, notices may be sent by first-class mail, but only if an electronic version of such notices is contemporaneously sent to the Commission at [email protected]. VOLUME 151 Decision and Order VIL.

IT IS FURTHER ORDERED that respondents US Search, Inc. and US Search, LLC, and their successors and assigns, within sixty (60) days after the date of service of this order, shall each file with the Commission a true and accurate report, in writing, setting forth in detail the manner and form of their own compliance with this order. Within ten (10) days of receipt of written notice from a representative of the Commission, they shall submit additional true and accurate written reports.

VIII.

This order will terminate on March 14, 2031, or twenty (20) years from the most recent date that the United States or the Federal Trade Commission files a complaint (with or without an accompanying consent decree) in federal court alleging any violation of the order, whichever comes later; provided, however, that the filing of such a complaint will not affect the duration of: A. Any Part in this order that terminates in less than twenty (20) years;

B. This order's application to any respondent that is not named as a defendant in such complaint; and C. This order if such complaint is filed after the order has terminated pursuant to this Part.

Provided, further, that if such complaint is dismissed or a federal court rules that the respondent did not violate any provision of the order, and the dismissal or ruling is either not appealed or upheld on appeal, then the order will terminate according to this Part as though the complaint had never been filed, except that the order will not terminate between the date such complaint is filed and the later of the US SEARCH, INC. 195 Decision and Order deadline for appealing such dismissal or ruling and the date such dismissal or ruling is upheld on appeal. By the Commission.

ANALYSIS OF PROPOSED CONSENT ORDER TO AID PUBLIC COMMENT The Federal Trade Commission has accepted, subject to final approval, a consent agreement with US Search, Inc., and US Search, LLC (collectively “US Search’).

The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and comments received, and will decide whether it should withdraw from the agreement and take appropriate action or make final the agreement’s proposed order.

US Search operates an online data broker service and sells publicly available information about consumers to other consumers through its website, www.ussearch.com. This publicly available information includes name, age, address, phone numbers, email addresses, aliases, maiden name, death records, address history, information about friends, associates, and relatives, marriage and divorce information, bankruptcies, tax liens, civil lawsuits, criminal records, and home values. In conjunction with this service, since June 2009, US Search has offered and sold a PrivacyLock service, which purportedly allows consumers to “lock their records” on the US Search website and prevent their names from appearing on US Search’s website, in US Search’s advertisements, and in US Search’s VOLUME 151 Analysis to Aid Public Comment search results. Until recently, US Search charged most consumers a $10 fee to place a PrivacyLock, and almost 5,000 consumers paid to have their information removed from the US Search site. The complaint alleges that, in truth and in fact, the PrivacyLock service did not prevent consumers’ information from appearing on the US Search website in many instances. The complaint alleges that US Search has engaged in deceptive acts or practices, in violation of Section 5 of the FTC Act, by misrepresenting that the purchase or use of its PrivacyLock service will prevent a consumer’s name and address from appearing on US Search’s website, US Search’s advertisements, and in US Search’s search results. The proposed consent order includes injunctive relief that enjoins US Search from misrepresenting the effectiveness of its PrivacyLock service or any other service offered to consumers that will allow consumers to remove publicly available information from US Search’s search results, websites, and advertisements. Also included in the order are redress provisions that require US Search to refund any money consumers paid for the PrivacyLock service. Under the proposed order, US Search would be required to credit consumers’ credit and debit card accounts and notify consumers via email that such credits were made.

Part I of the proposed order prohibits US Search from misrepresenting, in any manner, the effectiveness of its “PrivacyLock” service or any other service offered to consumers that will allow consumers to remove publicly available information from US Search’s search results, websites, or advertisements. Part II of the proposed order prohibits US Search from making any representations concerning the effectiveness its “PrivacyLock” service or any other similar service offered to consumers that will allow consumers to remove publicly available information from US Search’s search results, websites, or advertisements, unless US Search discloses, clearly and prominently, any material limitations regarding such service, including but not limited to (1) any limitations US SEARCH, INC. 197 Analysis to Aid Public Comment on the duration of the removal; and (2) any circumstances under which information about the consumers will not be removed or will reappear.

Part III of the proposed order requires US Search to provide full refunds to any consumer who requested “PrivacyLock” and was assessed a charge for such service, by crediting the consumer’s credit or debit card used to purchase the service. US Search must also provide notice of the refund through an email message sent to affected consumers. The message must include an address and a tollfree number for consumers to use to contact US Search regarding the refund. US Search must display a notice about its refund program clearly and prominently on its website for a period of one year. Any amounts not refunded to consumers must be deposited with the U.S. Treasury as disgorgement. The proposed order further requires US Search, within one year of issuance of this order, to provide the Commission with an accounting of all refunds paid to consumers, as well as any amounts that were deposited with the U.S. Treasury as disgorgement.

Parts IV through VIII of the proposed order are reporting and compliance provisions. Part IV of the proposed order requires US Search to retain for a period of five (5) years from the last date of dissemination of any representation covered by the order all advertisements and promotional materials containing the representation; complaints and refund requests, and any responses to such requests; and all records and documents necessary to demonstrate full compliance with each provision of the proposed order.

Part V of the proposed order requires dissemination of the order now and in the future to principals, officers, directors, and managers having responsibilities relating to the subject matter of the order. Part VI ensures notification to the FTC of changes in corporate status. Part VII mandates that US Search submit an initial compliance report to the FTC and make available to the FTC subsequent reports. Part VOLUME 151 Concurring Statement VIII is a provision “‘sunsetting” the order after twenty (20) years, with certain exceptions.

The purpose of the analysis is to aid public comment on the proposed order. It is not intended to constitute an official interpretation of the proposed order or to modify its terms in any way.

CONCURRING STATEMENT OF COMMISSIONER BRILL The respondent in this matter, US Search, Inc., is an online commercial information broker that gathers and sells information about individuals obtained from public records. The Commission’s action announced today alleges that US Search deceived consumers when it failed to honor its promise to remove profiles of consumers who paid $10 to opt out of the company’s databases. The resolution of this matter requires US Search to provide full refunds to every consumer who paid to opt out of the databases. I support the resolution of this case based on its particular facts. This case raises a number of troubling issues. As noted in our recent draft report, “Protecting Privacy in an Era of Rapid Change,” information brokers collect data from a wide variety of online and offline sources, including traditional public sources such as court files, property records, and telephone books’. While this sort of 1 Fed. Trade Commu, Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers (2010) (preliminary FTC staff report), available at http://www. ftc.gov/os/2010/12/101201privacyreport.pdf. US SEARCH, INC. 199 Concurring Statement publicly available information has been gathered, processed, and sold by private parties since time immemorial, the marketplace for consumer information has been radically transformed in recent years. Until recently, it was not particularly cost effective for data brokers to trudge down to every tax assessor, county clerk, and courthouse to gather paper data, and then piece it together by hand in order to come up with a consumer profile. The advent of the Internet and high-speed data transfers has dramatically increased data brokers’ ability to gather public information from just about any source imaginable. Data brokers can now use sophisticated computer algorithms to piece together countless bits of discrete public data — sometimes combined with nonpublic information — into a composite consumer profile that many would find unsettling in its comprehensiveness. Understandably, many consumers want to have the choice to opt out of such data gathering, processing, and use, at least for certain purposes, such as marketing. More importantly, focusing only on the consumer’s opt out options misses more problematic issues that should be addressed. The collection, processing, and use of information by data brokers can have as great an impact on consumers as data gathered through Internet tracking. Industry and policymakers have demonstrated their awareness of the issues surrounding Internet tracking, and a willingness to address them. It is encouraging to see the selfregulatory proposals concerning online tracking that industry has developed since the Commission released the staffs draft privacy report’. It also is encouraging to see the current legislative efforts to 2 Over the past few months there has been a great deal of discussion by industry, consumer groups, technologists, and policy makers about how to address collection and use of data through consumers’ online interactions, both with first party websites and third party advertisers. Some of the solutions that are being discussed include browser modifications that will allow consumers to indicate their choices about data collection and use by websites they visit. See Press Release, Microsoft, Providing Windows Customers with More Choice and Control of Their Privacy Online with Internet Explorer 9 (Dec. 7, 2010) available at http://www.microsoft.com/presspass/features/2010/dec10/12-07 ie9privacyqa.mspx; Google Public Policy Blog, Keep your opt-outs (Jan. 24, 2011) available at http://googlepublicpolicy.blogspot.com/2011/01/keep-your- VOLUME 151 Concurring Statement address some of these same online tracking issues’. Unlike the recent self-regulatory efforts with respect to online tracking, there has been little effort by industry, since release of the draft staff report, to address the issues surrounding more traditional information brokers. I urge industry to work with technologists, consumer advocates, legislators and other policy makers to address the important issues relating to the collection, processing, and use of information by data brokers.

Among the issues that industry should consider are providing consumers with (1) meaningful notice, as described in the draft staff report, about information brokers’ practices, and (2) a reasonable means to access and correct consumers’ information held by information brokers. In addition, industry should consider whether, and under what circumstances, consumers should be given a reasonable mechanism to opt out of these databases. opt-outs.html; and Mozilla Blog, Mozilla Firefox 4 Beta, now including “Do Not Track” capabilities (Feb. 8, 2011) available at http://blog.mozilla.com/blog/2011/02/08/mozilla-firefox-4-beta-now-includingdo-not-track-capabilities/. Others use universal icons that will allow consumers to describe their choices about online data collection and use. See Press Release, Interactive Advertising Bureau Press Release, Major Marketing Media Trade Groups Launch Program to Give Consumers Enhanced Control over Collection and Use of Web Viewing Data for Online Behavioral Advertising (Oct. 4, 2010), available at http://www.iab.net/about_the_iab/recent_press_releases/ press_release_archive/press_release/pr-100410; Tony Romm and Kim Hart, Political Intel: FTC Chairman on Self-Regulatory Ad Effort, POLITICO Forums (Oct. 11, 2010), available at http://dyn.politico.com/members/ forums/thread.cfm?catid=24 &subcatid=78 &threadid=461 1665. 3 See H.R. 654, 112" Cong. (2011).

NBTY, INC. 201 Complaint