[Federal Register Volume 76, Number 223 (Friday, November 18, 2011)]
[Notices]
[Pages 71564-71566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29792]


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FEDERAL TRADE COMMISSION

[File No. 102 3185]


ScanScout, Inc.; Analysis of Proposed 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 draft 
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 December 8, 2011.

ADDRESSES: Interested parties may file a comment online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``ScanScout, File No. 
102 3185'' on your comment, and file your comment online at https://ftcpublic.commentworks.com/ftc/scanscoutconsent, by following the 
instructions on the Web-based form. If you prefer to file your comment 
on paper, mail or deliver your comment to the following address: 
Federal Trade Commission, Office of the Secretary, Room H-113 (Annex 
D), 600 Pennsylvania Avenue NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: Kandi Parsons ((202) 326-2369), FTC, 
Bureau of Competition, 600 Pennsylvania Avenue NW., Washington, DC 
20580.

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 November 8, 2011), 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, DC 
20580, either in person or by calling (202) 326-2222.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before December 8, 
2011. Write ``ScanScout, File No. 102 3185'' on your comment. Your 
comment--including your name and your state--will be placed on the 
public record of this proceeding, including, to the extent practicable, 
on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to 
remove individuals' home contact information from comments before 
placing them on the Commission Web site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment does not include any 
sensitive personal information, like anyone'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. You are also solely 
responsible for making sure that your comment does not include any 
sensitive health information, like medical records or other 
individually identifiable health information. In addition, do 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 FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do 
not include competitively sensitive information such as costs, sales 
statistics, inventories, formulas, patterns, devices, manufacturing 
processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you have to follow the procedure explained 
in FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ Your comment will be kept 
confidential only if the FTC General Counsel, in his or her sole 
discretion, grants your request in accordance with the law and the 
public interest.
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    \1\ In particular, the written request for confidential 
treatment that accompanies the comment must include the factual and 
legal basis for the request, and must identify the specific portions 
of the comment to be withheld from the public record. See FTC Rule 
4.9(c), 16 CFR 4.9(c).
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    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your

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comments online. To make sure that the Commission considers your online 
comment, you must file it at https://ftcpublic.commentworks.com/ftc/scanscoutconsent by following the instructions on the web-based form. 
If this Notice appears at http://www.regulations.gov/#!home, you also 
may file a comment through that Web site.
    If you file your comment on paper, write ``ScanScout, File No. 102 
3185'' on your comment and on the envelope, and mail or deliver it to 
the following address: Federal Trade Commission, Office of the 
Secretary, Room H-113 (Annex D), 600 Pennsylvania Avenue NW., 
Washington, DC 20580. If possible, submit your paper comment to the 
Commission by courier or overnight service.
    Visit the Commission Web site at http://www.ftc.gov to read this 
Notice and the news release describing it. The FTC Act and other laws 
that 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 on or before December 8, 2011. You can find more 
information, including routine uses permitted by the Privacy Act, in 
the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

Analysis of Agreement Containing Consent Order To Aid Public Comment

    The Federal Trade Commission has accepted, subject to final 
approval, a consent agreement from ScanScout, Inc. (``ScanScout'').
    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 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.
    ScanScout is a video advertising network that engages in online 
behavioral advertising, the practice of collecting and storing 
information about consumers' online activities across Web sites in 
order to deliver advertising targeted to their interests as inferred 
from their online activities. ScanScout acts as an intermediary between 
Web site publishers and advertisers that wish to have their video 
advertisements placed on Web sites. As a general matter, when a 
consumer visits a Web site within an online behavioral advertiser's 
network of Web site publishers, the online advertising network sets an 
HTTP cookie, which is a small text file, into the consumer's browser or 
automatically receives a cookie it has previously set in the consumer's 
browser. The cookie contains a unique identifier that allows the 
network to recognize the consumer's computer and correlate the computer 
to online activity across Web sites. The advertising network uses the 
cookie to collect and store information about the consumer's online 
activities, including content or advertisements viewed and the pages 
visited within a particular Web site.
    By contrast, from at least April 2007 to September 2009, ScanScout 
used Flash cookies, also known as Flash local shared objects, instead 
of HTTP cookies to conduct online behavioral advertising. ScanScout's 
privacy policy stated that by changing their browser settings, 
consumers could opt out of receiving cookies; however, at that time, 
users could not use their browser settings to block the placement of 
Flash cookies. Accordingly, the complaint alleges that ScanScout 
deceived consumers and violated Section 5 of the FTC Act by stating 
that consumers could prevent the company from collecting data about 
their online activities by changing their browser settings to prevent 
the receipt of cookies. The Commission alleges that representations 
ScanScout made in its privacy policy regarding consumers' ability to 
opt out of receiving cookies were false or misleading.
    Part I of the proposed order prohibits ScanScout \2\ from 
misrepresenting (1) the extent to which data about users or their 
online activities is collected, used, disclosed, or shared and (2) the 
extent to which users may exercise control over the collection, use, 
disclosure, or sharing of data collected from or about them, their 
computers or devices or their online activities. Part II of the 
proposed order requires the company to take a number of steps to 
improve the transparency of, and users' ability to control, its 
collection of user data for online behavioral advertising. First, 
within thirty (30) days after service of the proposed order, ScanScout 
must place a clear and prominent notice with a hyperlink on the 
homepage of its Web site that states: ``We collect information about 
your activities on certain Web sites to send you targeted ads. To opt 
out of our targeted advertisements, click here.'' The notice must 
direct users to a mechanism that allows them to prevent the company 
from (1) collecting information that can be associated with them or 
contains a unique identifier, (2) redirecting their browsers to third 
parties that collect data, absent an affirmative action, and (3) 
associating any previously collected data with them. Such choice must 
remain in effect for a minimum of five (5) years. ScanScout may, 
however, collect data that can be associated with a particular user or 
that contains a unique identifier for certain permissible uses 
specified in the order--for example, to effectuate the consumer's opt 
out choice or to limit the number of times an advertisement is 
displayed.
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    \2\ In November 2010, ScanScout merged with Tremor Media, Inc., 
now known as Tremor Video, Inc. Tremor Video, Inc. is included in 
the definition of respondent in the order. In addition, the order 
includes a representation by ScanScout that any parents, 
subsidiaries, and successors necessary to effectuate the relief 
contemplated by the order are bound to the order as if they had 
signed the agreement and were made parties to the proceeding.
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    Second, within close proximity to the mechanism, the company must 
disclose: (1) That it collects information about users' activities on 
certain Web sites to deliver targeted ads; (2) that by opting out, the 
company will not collect this information to deliver such ads; (3) 
users' current choice status (i.e., whether opted out or not opted 
out); and (4) any circumstances that, if initiated by the user, would 
disable the mechanism or require the user to implement the mechanism 
again to maintain his or her choice (i.e., if they switch browsers or 
devices, or if they delete cookies, they will have to opt out again).
    Third, within or immediately adjacent to any behaviorally targeted 
display advertisement that the company serves, it must include a 
hyperlink that takes users directly to the required choice mechanism. 
The hyperlink text must disclose to consumers that selecting the 
hyperlink will give them choices about receiving targeted ads.
    Fourth, due to technical limitations ScanScout cannot currently 
incorporate a hyperlink to the choice mechanism into all its video 
advertisements; therefore the order requires the company to undertake 
reasonable efforts to develop and implement a hyperlink for video 
advertisements that directs users to the choice mechanism, and the 
company must report regularly to the Commission regarding those 
efforts.
    Parts III through VII of the proposed order are reporting and 
compliance provisions. Part III requires ScanScout to retain documents 
relating to its compliance with the order. Part IV requires 
dissemination of the order to all current and future principals, 
officers, directors, managers, employees, agents, and representatives 
having

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supervisory responsibilities relating to the subject matter of the 
order. Part V ensures notification to the FTC of changes in corporate 
status. Part VI mandates that ScanScout submit reports to the 
Commission detailing its compliance with the order. Part VII provides 
that the order expires 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.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2011-29792 Filed 11-17-11; 8:45 am]
BILLING CODE 6750-01-P