[Federal Register Volume 79, Number 19 (Wednesday, January 29, 2014)]
[Notices]
[Pages 4707-4709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-01767]


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FEDERAL TRADE COMMISSION

[File No. 142-3023]


DataMotion, 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. The attached Analysis of Proposed Consent Order 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.

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DATES: Comments must be received on or before February 20, 2014.

ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/datamotionconsent online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``DataMotion, Inc.--
Consent Agreement; File No. 142-3023'' on your comment and file your 
comment online at https://ftcpublic.commentworks.com/ftc/datamotionconsent https://ftcpublic.commentworks.com/ftc/fidelitynationalconsent 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: Jessica Lyon, Bureau of Consumer 
Protection, (202-326-2344), 600 Pennsylvania Avenue NW., Washington, DC 
20580.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, 
notice is hereby given that the above-captioned consent agreement 
containing 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 21, 2014), 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 20, 
2014. Write ``DataMotion, Inc.--Consent Agreement; File No. 142-3023'' 
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 privileged or confidential,'' as discussed 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/datamotionconsent 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 ``DataMotion, Inc.--
Consent Agreement; File No. 142-3023'' 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 20, 2014. 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 Proposed Consent Order To Aid Public Comment

    The Federal Trade Commission (``FTC'' or ``Commission'') has 
accepted, subject to final approval, a consent agreement applicable to 
DataMotion, Inc. (``DataMotion'').
    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.
    This matter concerns alleged false or misleading representations 
that DataMotion made to consumers concerning its participation in the 
Safe Harbor privacy frameworks agreed upon by the U.S. and the European 
Union (``U.S.-EU Safe Harbor Framework'') and the U.S. and Switzerland 
(``U.S.-Swiss Safe Harbor Framework''). It is among several actions the 
Commission is bringing to enforce the promises that companies make when 
they certify that they participate in the U.S.-EU Safe Harbor Framework 
and/or U.S.-Swiss Safe Harbor Framework (``Safe Harbor Frameworks''). 
The Safe Harbor Frameworks allow U.S. companies to transfer data 
outside the EU and Switzerland consistent with European law. To join 
the Safe Harbor Frameworks, a company must self-certify to the U.S. 
Department of Commerce (``Commerce'') that it complies with a set of 
principles and related requirements that have been deemed by the 
European Commission and Switzerland as providing ``adequate'' privacy 
protection. These principles include notice, choice,

[[Page 4709]]

onward transfer, security, data integrity, access, and enforcement. 
Commerce maintains a public Web site, www.export.gov/safeharbor, where 
it posts the names of companies that have self-certified to the Safe 
Harbor Frameworks. The listing of companies indicates whether their 
self-certification is ``current'' or ``not current.'' Companies are 
required to re-certify every year in order to retain their status as 
``current'' members of the Safe Harbor Frameworks.
    In 2008, Commerce developed the U.S.-EU Safe Harbor Framework 
Certification Mark (``the mark'') to allow companies to highlight for 
consumers their compliance with the Safe Harbor framework. Upon 
request, Commerce provides the mark to those organizations that 
maintain a ``current'' self-certification to the U.S.-EU Safe Harbor 
Framework. Commerce has established certain rules for using the mark, 
such as requirements related to the mark's placement on a Web site and 
the inclusion of a link to www.export.gov/safeharbor.
    DataMotion provides businesses with systems for sending encrypted 
email and other secure file transport. According to the Commission's 
complaint, since at least April 2012, DataMotion has set forth on its 
Web site, www.datamotion.com, privacy policies and statements about its 
practices, including statements related to its participation in the 
U.S.-EU Safe Harbor Framework and U.S.-Swiss Safe Harbor Framework. In 
addition, from at least April 2012 until November 2013, DataMotion 
displayed the mark on its Web site.
    The Commission's complaint alleges that DataMotion, through its 
statements and use of the mark, falsely represented that it was a 
``current'' participant in the Safe Harbor Frameworks when, in fact, 
from April 2013 until November 2013, DataMotion was not a ``current'' 
participant in the Safe Harbor Frameworks. The Commission's complaint 
alleges that in April 2012, DataMotion submitted a self-certification 
to the Safe Harbor Frameworks. DataMotion did not renew its self-
certification in April 2013 and Commerce subsequently updated 
DataMotion's status to ``not current'' on its public Web site. In 
November 2013, DataMotion renewed its self-certification to the Safe 
Harbor Frameworks and its status was changed to ``current'' on 
Commerce's Web site.
    Part I of the proposed order prohibits DataMotion from making 
misrepresentations about its membership in any privacy or security 
program sponsored by the government or any other self-regulatory or 
standard-setting organization, including, but not limited to, the U.S.-
EU Safe Harbor Framework and the U.S.-Swiss Safe Harbor Framework.
    Parts II through VI of the proposed order are reporting and 
compliance provisions. Part II requires DataMotion to retain documents 
relating to its compliance with the order for a five-year period. Part 
III requires dissemination of the order now and in the future to 
persons with responsibilities relating to the subject matter of the 
order. Part IV ensures notification to the FTC of changes in corporate 
status. Part V mandates that DataMotion submit an initial compliance 
report to the FTC, and make available to the FTC subsequent reports. 
Part VI is a provision ``sunsetting'' the order 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 complaint or order or to modify the 
order's terms in any way.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2014-01767 Filed 1-28-14; 8:45 am]
BILLING CODE 6750-01-P