[Federal Register Volume 74, Number 113 (Monday, June 15, 2009)]
[Notices]
[Pages 28244-28246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13955]


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FEDERAL TRADE COMMISSION

[File No. 082 3099]


Sears Holdings Management Corporation; Analysis of Agreement 
Containing Consent Order to Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices or unfair methods of competition. The attached Analysis to 
Aid Public Comment describes both the allegations in the complaint and 
the terms of the consent order--embodied in the consent agreement--that 
would settle these allegations.

DATES: Comments must be received on or before July 6, 2009.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form. Comments should refer to``Sears, File 
No. 082-3099'' to facilitate the organization of comments. Please note 
that your comment--including your name and your state--will be placed 
on the public record of this proceeding, including on the publicly 
accessible FTC website, at (http://www.ftc.gov/os/publiccomments.shtm).
    Because comments will be made public, they should not include any 
sensitive personal information, such as an individual's Social Security 
Number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. Comments also 
should not include any sensitive health information, such as medical 
records or other individually identifiable health information. In 
addition, comments should not include any ``[t]rade secret or any 
commercial or financial information which is obtained from any person 
and which is privileged or confidential.* * * as provided in Section 
6(f) of the FTC Act, 15 U.S.C. 46(f), and Commission Rule 4.10(a)(2), 
16 CFR 4.10(a)(2). Comments containing material for which confidential 
treatment is requested must be filed in paper form, must be clearly 
labeled ``Confidential,'' and must comply with FTC Rule 4.9(c), 16 CFR 
4.9(c).\1\
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    \1\ The comment must be accompanied by an explicit request for 
confidential treatment, including the factual and legal basis for 
the request, and must identify the specific portions of the comment 
to be withheld from the public record. The request will be granted 
or denied by the Commission's General Counsel, consistent with 
applicable law and the public interest. See FTC Rule 4.9(c), 16 CFR 
4.9(c).
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    Because paper mail addressed to the FTC is subject to delay due to 
heightened security screening, please consider submitting your comments 
in electronic form. Comments filed in electronic form should be 
submitted by using the following weblink: (https://secure.commentworks.com/ftc-searsholdings) (and following the 
instructions on the web-based form). To ensure that the Commission 
considers an electronic comment, you must file it on the web-based form 
at the weblink:

[[Page 28245]]

(https://secure.commentworks.com/ftc-searsholdings). If this Notice 
appears at (http://www.regulations.gov/search/index.jsp), you may also 
file an electronic comment through that website. The Commission will 
consider all comments that regulations.gov forwards to it. You may also 
visit the FTC website at http://www.ftc.gov/ to read the Notice and the 
news release describing it.
    A comment filed in paper form should include the ``Sears, File No. 
082 3099 `` reference both in the text and on the envelope, and should 
be mailed or delivered to the following address: Federal Trade 
Commission, Office of the Secretary, Room H-135 (Annex D), 600 
Pennsylvania Avenue, NW, Washington, DC 20580. The FTC is requesting 
that any comment filed in paper form be sent by courier or overnight 
service, if possible, because U.S. postal mail in the Washington area 
and at the Commission is subject to delay due to heightened security 
precautions.
    The Federal Trade Commission Act (``FTC Act'') and other laws the 
Commission administers permit the collection of public comments to 
consider and use in this proceeding as appropriate. The Commission will 
consider all timely and responsive public comments that it receives, 
whether filed in paper or electronic form. Comments received will be 
available to the public on the FTC website, to the extent practicable, 
at (http://www.ftc.gov/os/publiccomments.shtm). As a matter of 
discretion, the Commission makes every effort to remove home contact 
information for individuals from the public comments it receives before 
placing those comments on the FTC website. More information, including 
routine uses permitted by the Privacy Act, may be found in the FTC's 
privacy policy, at (http://www.ftc.gov/ftc/privacy.shtm).

FOR FURTHER INFORMATION CONTACT: Rick Quaresima, Bureau of Consumer 
Protection, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580, (202) 
326-3130.

SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec.  2.34 the 
Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that 
the above-captioned consent agreement containing a consent order to 
cease and desist, having been filed with and accepted, subject to final 
approval, by the Commission, has been placed on the public record for a 
period of thirty (30) days. The following Analysis to Aid Public 
Comment describes the terms of the consent agreement, and the 
allegations in the complaint. An electronic copy of the full text of 
the consent agreement package can be obtained from the FTC Home Page 
(for June 4, 2009), on the World Wide Web, at (http://www.ftc.gov/os/actions.shtm). A paper copy can be obtained from the FTC Public 
Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW, Washington, 
D.C. 20580, either in person or by calling (202) 326-2222.
    Public comments are invited, and may be filed with the Commission 
in either paper or electronic form. All comments should be filed as 
prescribed in the ADDRESSES section above, and must be received on or 
before the date specified in the DATES section.

Analysis of Agreement Containing Consent Order to Aid Public Comment

    The Federal Trade Commission (``FTC'' or ``Commission'') has 
accepted, subject to final approval, an agreement containing a consent 
order from Sears Holdings Management Corporation (``Respondent'').
    The proposed consent order (``proposed 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 the comments received, and will decide 
whether it should withdraw from the agreement and take appropriate 
action or make final the agreement's proposed order.
    This matter involves the advertising and dissemination from April 
2007 through January 2008 of a software application (the 
``Application'') that tracked nearly all of the Internet activities 
that took place on the computers of consumers who installed it as part 
of Respondent's ``My SHC Community'' market research program. According 
to the FTC complaint, Respondent represented, in the process of 
soliciting consumers to download and install the Application, that the 
Application would track consumers' ``online browsing.'' The complaint 
alleges that this claim is deceptive because Respondent failed to 
disclose adequately that the Application, when installed, would do much 
more. Only in a lengthy user license agreement did Respondent disclose 
that the Application would: monitor nearly all of the Internet behavior 
that occurs on consumers' computers, including information exchanged 
between consumers and websites other than those owned, operated, or 
affiliated with Respondent, information provided in secure sessions 
when interacting with third-party websites, shopping carts, and online 
accounts, and headers of web-based email; track certain non-Internet-
related activities taking place on those computers; and transmit nearly 
all of the monitored information (excluding selected categories of 
filtered information) to Respondent's remote computer servers.
    The proposed order contains provisions designed to prevent 
Respondent from engaging in similar acts and practices in the future. 
The proposed consent order defines a ``Tracking Application'' as ``any 
software program or application . . . that is capable of being 
installed on consumers' computers and used by or on behalf of 
respondent to monitor, record, or transmit information about activities 
occurring on computers on which it is installed, or about data that is 
stored on, created on, transmitted from, or transmitted to the 
computers on which it is installed.'' Part I requires that Respondent, 
in advertising or disseminating any Tracking Application, disclose 
certain information clearly and prominently, prior to the downloading 
or installing of the application, and on a separate screen from any 
final ``end user license agreement'' or similar document. That 
information would include all the types of data that the Tracking 
Application will monitor, record, or transmit; how the data may be 
used; and whether the data may be used by a third party. In describing 
the types of data, Respondent would be required specifically to 
disclose: whether the data may include information from the consumer's 
interactions with a specific set of websites or from a broader range of 
Internet interaction; whether the data may include transactions or 
information exchanged between the consumer and third parties in secure 
sessions, interactions with shopping baskets, application forms, or 
online accounts; and whether the information may include personal 
financial or health information. Respondent must also obtain express 
consent from consumers prior to downloading or installing a Tracking 
Application.
    Part II of the proposed order requires Respondent to post a clear 
and prominent notice on the myshccommunity.com website advising 
consumers that the types of information the Application actually 
collected and transmitted to Sears and advising them how to uninstall 
the Application. It also requires Sears to provide prompt, toll-free, 
telephonic and email support to

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help affected consumers uninstall the Application.
    Part III of the proposed order requires that Respondent, to the 
extent it has not already done so, cease collecting any data 
transmitted by any previously installed Tracking Application and to 
destroy any previously collected data.
    Parts IV through VII of the proposed order require Respondent: to 
keep copies of relevant consumer complaints and inquiries, documents 
demonstrating order compliance, and advertisements and other documents 
relating to dissemination of any Tracking Application; to provide 
copies of the order to certain of their personnel; to notify the 
Commission of changes in corporate structure that might affect 
compliance obligations under the order; and to file compliance reports 
with the Commission. Part VIII provides that the order will terminate 
after twenty (20) years, with certain exceptions.
    The purpose of this analysis is to facilitate public comment on the 
proposed order, and it is not intended to constitute an official 
interpretation of the agreement and proposed order or to modify in any 
way their terms.
    By direction of the Commission.

Donald S. Clark,
Secretary.
[FR Doc. E9-13955 Filed 6-12-09: 8:45 am]
BILLING CODE: 6750-01-S