[Federal Register Volume 77, Number 11 (Wednesday, January 18, 2012)]
[Notices]
[Pages 2543-2545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-750]


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FEDERAL TRADE COMMISSION

[File No. 102 3116]


Upromise, 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 February 6, 2012.

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 ``Upromise, File No. 102 
3116'' on your comment, and file your comment online at https://ftcpublic.commentworks.com/ftc/upromiseconsent, 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: Ruth Yodaiken (202) 326-2127 or 
Katrina Blodgett (202) 326-3158, FTC, Bureau of Consumer Protection, 
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 January 5, 2012), 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 February 6, 
2012. Write ``Upromise, File No. 102 3116'' 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 comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/upromiseconsent 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 ``Upromise, File No. 102 
3116'' 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 February 6, 2012. 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, an

[[Page 2544]]

agreement containing a consent order applicable to Upromise, Inc.
    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.
    Upromise offers, among other things, a membership service through 
which consumers who join can receive cash rebates for making online 
purchases from merchants who participate in the Upromise program. To 
take part in the program, consumers download and install software, the 
Upromise TurboSaver Toolbar (``Toolbar''), from Upromise that modifies 
the consumers' Internet browser to highlight Upromise member merchants.
    The Commission's complaint involves the advertising, marketing, and 
operation of an optional feature of that Toolbar, the ``personalized 
offers'' feature. That feature modified the Toolbar to provide targeted 
advertising to the consumer based upon the consumers' online behavior 
(the modified version is referred to here as the ``Targeting Tool''). 
Upromise engaged a service provider to develop the Toolbar and the 
personalized offers feature.
    According to the FTC complaint, while Upromise represented to 
consumers that the Targeting Tool collected information about the web 
sites consumers visited, its failure to disclose the full extent of 
data collected through the software was deceptive. The complaint 
alleges that the Targeting Tool collected the names of all Web sites 
visited; all links clicked; information that consumers entered into 
some web pages such as usernames, passwords, and search terms; and, 
from July 2009 through mid-January 2010, consumers' interactions with 
forms on secure web pages. The complaint further alleges that Upromise 
misrepresented its privacy and security practices, including 
misrepresenting that consumers' data would be encrypted. The complaint 
alleges that these claims were false and thus violate Section 5 of the 
FTC Act.
    In addition, the FTC complaint alleges that Upromise engaged in a 
number of practices that, taken together, failed to provide reasonable 
and appropriate security for the personal information it collected and 
maintained. Among other things, Upromise: (1) Transmitted sensitive 
information from secure web pages, such as financial account numbers 
and security codes, in clear readable text; (2) did not use readily 
available, low-cost measures to assess and address the risks to 
consumer information; (3) failed to ensure that employees responsible 
for the information collection program received adequate guidance and 
training; (4) failed to take adequate measures to ensure that its 
service provider employed reasonable and appropriate measures to 
protect consumer information.
    The complaint alleges that Upromise's failure to employ reasonable 
and appropriate measures to protect consumer information--including 
credit card and financial account numbers, security codes and 
expiration dates, and Social Security numbers--was unfair. Tools for 
capturing data in transit, for example over unsecured wireless networks 
such as those often provided in coffee shops and other public spaces, 
are commonly available, making such clear-text data vulnerable to 
interception. The misuse of such information--particularly financial 
account information and Social Security numbers--can facilitate 
identity theft and related consumer harms.
    The proposed order contains provisions designed to prevent Upromise 
from engaging in the future in practices similar to those alleged in 
the complaint.
    Part I of the proposed order requires Upromise to disclose to 
consumers--before the download or installation of software that records 
or transmits information about any activity occurring on a computer 
involving the computer's interactions with Web sites, services, 
applications, or forms--the types of information collected and how the 
information will be used. The disclosure must be clear and prominent 
and separate from other notices. The company must also obtain 
consumers' express affirmative consent before the consumer downloads, 
installs, or otherwise activates such software. In addition, the 
company must provide this clear and prominent notice, and obtain 
express affirmative consent, before enabling data collection through 
any previously installed TurboSaver Toolbar and before making any 
material change from stated practices about collection or sharing of 
personal information through the Toolbar.
    Part II of the proposed order requires Upromise to provide notice 
to consumers who, prior to the issuance of the order, had the 
Personalized Offers feature enabled. The notice must inform consumers 
about the categories of personal information that were, or could have 
been, transmitted by the feature, and how to disable the Personalized 
Offers feature and uninstall the Toolbar. Part III of the proposed 
order requires the company to destroy data it collected during the 
years covered by the complaint unless otherwise directed by the 
Commission.
    Part IV of the proposed order prohibits the company from making any 
misrepresentations about the extent to which it maintains and protects 
the security, privacy, confidentiality, or integrity of any information 
collected from or about consumers. Part V of the proposed complaint 
requires Upromise to maintain a comprehensive information security 
program that is reasonably designed to protect the security, 
confidentiality, and integrity of such information (whether in paper or 
electronic format) about consumers. The security program must contain 
administrative, technical, and physical safeguards appropriate to 
Upromise's size and complexity, the nature and scope of its activities, 
and the sensitivity of the information collected from or about 
consumers and employees. Specifically, the proposed order requires 
Upromise to:
     Designate an employee or employees to coordinate and be 
accountable for the information security program;
     Identify material internal and external risks to the 
security, confidentiality, and integrity of personal information that 
could result in the unauthorized disclosure, misuse, loss, alteration, 
destruction, or other compromise of such information, and assess the 
sufficiency of any safeguards in place to control these risks;
     Design and implement reasonable safeguards to control the 
risks identified through risk assessment, and regularly test or monitor 
the effectiveness of the safeguards' key controls, systems, and 
procedures;
     Develop and use reasonable steps to select and retain 
service providers capable of appropriately safeguarding personal 
information they receive from Upromise or obtain on behalf of Upromise, 
and require service providers by contract to implement and maintain 
appropriate safeguards; and
     Evaluate and adjust its information security programs in 
light of the results of testing and monitoring, any material changes to 
operations or business arrangements, or any other circumstances that it 
knows or has reason to know may have a material impact on its 
information security program.

[[Page 2545]]

    Part VI of the proposed order requires Upromise to obtain within 
the first one hundred eighty (180) days after service of the order, and 
on a biennial basis thereafter for a period of twenty (20) years, an 
assessment and report from a qualified, objective, independent third-
party professional, certifying, among other things, that: (1) It has in 
place a security program that provides protections that meet or exceed 
the protections required by the proposed order; and (2) its security 
program is operating with sufficient effectiveness to provide 
reasonable assurance that the security, confidentiality, and integrity 
of sensitive consumer, employee, and job applicant information has been 
protected.
    Parts VII, VIII, IX, X, XI, and XII of the proposed order are 
reporting and compliance provisions. Part VII requires Upromise to 
retain documents relating to its compliance with the order. For most 
records, the order requires that the documents be retained for a five-
year period. For the third-party assessments and supporting documents, 
Upromise must retain the documents for a period of three years after 
the date that each assessment is prepared. Part VIII requires the 
company to cooperate with the FTC in connection with this action or any 
subsequent investigations related to or associated with the 
transactions or the occurrences that are the subject of the FTC 
complaint. Part IX requires dissemination of the order now and in the 
future to persons with responsibilities relating to the subject matter 
of the order. Part X ensures notification to the FTC of changes in 
corporate status. Part XI mandates that Upromise submit a compliance 
report to the FTC within 60 days, and periodically thereafter as 
requested. Part XII 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. 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.
Richard C. Donohue,
Acting Secretary.
[FR Doc. 2012-750 Filed 1-17-12; 8:45 am]
BILLING CODE 6750-01-P