Proposed Rule2021-27731
Trade Regulation Rule on Impersonation of Government and Businesses
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 23, 2021
Issuing agencies
Federal Trade Commission
Abstract
The Federal Trade Commission ("Commission") proposes to commence a rulemaking proceeding to address certain deceptive or unfair acts or practices of impersonation. The Commission is soliciting written comment, data, and arguments concerning the need for such a rulemaking to prevent persons, entities, and organizations from impersonating government agencies or staff and businesses or their agents.
Full Text
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[Federal Register Volume 86, Number 244 (Thursday, December 23, 2021)]
[Proposed Rules]
[Pages 72901-72905]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27731]
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FEDERAL TRADE COMMISSION
16 CFR Part 461
Trade Regulation Rule on Impersonation of Government and
Businesses
AGENCY: Federal Trade Commission.
ACTION: Advance notice of proposed rulemaking; request for public
comment.
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SUMMARY: The Federal Trade Commission (``Commission'') proposes to
commence a rulemaking proceeding to address certain deceptive or unfair
acts or practices of impersonation. The Commission is soliciting
written comment, data, and arguments concerning the need for such a
rulemaking to prevent persons, entities, and organizations from
impersonating government agencies or staff and businesses or their
agents.
DATES: Comments must be received on or before February 22, 2022.
ADDRESSES: Interested parties may file a comment online or on paper by
following the instructions in the Comment Submissions part of the
SUPPLEMENTARY INFORMATION section below. Write ``Impersonation ANPR;
FTC File No. R207000'' on your comment and file your comment online at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. If you prefer to file on paper, mail your
comment to the following address: Federal Trade Commission, Office of
the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex B),
Washington, DC 20580, or deliver your comment to the following address:
Federal Trade Commission, Office of the Secretary, Constitution Center,
400 7th Street SW, 5th Floor, Suite 5610 (Annex B), Washington, DC
20024.
FOR FURTHER INFORMATION CONTACT: Christopher E. Brown (202-326-2825),
<a href="/cdn-cgi/l/email-protection#94f7f6e6fbe3faa7d4f2e0f7baf3fbe2"><span class="__cf_email__" data-cfemail="d9babbabb6aeb7ea99bfadbaf7beb6af">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. General Background Information
The Commission is publishing this document pursuant to Section 18
of the Federal Trade Commission (``FTC'') Act, 15 U.S.C. 57a; the
provisions of Part 1, Subpart B, of the Commission's Rules of Practice,
16 CFR 1.7 through 1.20; and 5 U.S.C. 553. This authority permits the
Commission to promulgate, modify, and repeal trade regulation rules
that define with specificity acts or practices that are unfair or
deceptive in or affecting commerce within the meaning of Section
5(a)(1) of the FTC Act, 15 U.S.C. 45(a)(1).
II. Objectives the Commission Seeks To Achieve and Possible Regulatory
Alternatives
A. Background
Impersonation scams are a leading source of consumer fraud reported
to the Commission, with the highest total financial loss for consumers.
Impersonation scams can take many forms, but they generally involve
scammers pretending to be a trusted source who convinces their targets
to send money or to disclose personal information.\1\ In the first
three quarters of 2021, more than 788,000 impersonation scams were
reported to the Commission, with a total reported monetary loss of
about $1.6 billion dollars.\2\ These scams often specifically target
older consumers and communities of color \3\ as well as small
businesses.\4\ Two prevalent categories of impersonation scams most
frequently reported by consumers are government impersonators and
business impersonators.\5\
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\1\ Imposter Scams, Fed. Trade Comm'n, <a href="https://www.consumer.ftc.gov/features/feature-0037-imposter-scams">https://www.consumer.ftc.gov/features/feature-0037-imposter-scams</a> (last
visited Nov. 4, 2021).
\2\ Fed. Trade Comm'n, Fraud Reports: Subcategories over time:
Imposter Scams, Tableau Public (Nov. 23, 2021), <a href="https://public.tableau.com/app/profile/federal.trade.commission/viz/FraudReports/SubcategoriesOverTime">https://public.tableau.com/app/profile/federal.trade.commission/viz/FraudReports/SubcategoriesOverTime</a>. While some of the increase
observed in 2021 is attributable to new data contributors, including
the Social Security Administration, impersonation is a massive and
persistent fraud and has been the top fraud category reported to the
FTC every year since 2017. See Fed. Trade Comm'n, Fraud Reports: Top
Reports, Tableau Public (Nov. 23, 2021), <a href="https://public.tableau.com/app/profile/federal.trade.commission/viz/FraudReports/TopReports">https://public.tableau.com/app/profile/federal.trade.commission/viz/FraudReports/TopReports</a>.
For a list of Sentinel data contributors, see <a href="https://www.ftc.gov/enforcement/consumer-sentinel-network/data-contributors">https://www.ftc.gov/enforcement/consumer-sentinel-network/data-contributors</a>.
\3\ See, e.g., AARP, Consumer Fraud in America: The Black
Experience (Aug. 2021), <a href="https://www.aarp.org/content/dam/aarp/research/surveys_statistics/econ/2021/consumer-fraud-black-experience.doi.10.26419-2Fres.00456.001.pdf">https://www.aarp.org/content/dam/aarp/research/surveys_statistics/econ/2021/consumer-fraud-black-experience.doi.10.26419-2Fres.00456.001.pdf</a>; AARP, Consumer Fraud in
America: The Latino Experience (Aug. 2021), <a href="https://www.aarp.org/content/dam/aarp/research/surveys_statistics/econ/2021/consumer-fraud-latino-experience-report.doi.10.26419-2Fres.00455.001.pdf">https://www.aarp.org/content/dam/aarp/research/surveys_statistics/econ/2021/consumer-fraud-latino-experience-report.doi.10.26419-2Fres.00455.001.pdf</a>;
Fed. Trade Comm'n, Serving Communities of Color: A Staff Report on
the Federal Trade Commission's Efforts to Address Fraud and Consumer
Issues Affecting Communities of Color (October 2021) at 12-15, 23,
43-44, available at <a href="https://www.ftc.gov/system/files/documents/reports/serving-communities-color-staff-report-federal-trade-commissions-efforts-address-fraud-consumer/ftc-communities-color-report_oct_2021-508-v2.pdf">https://www.ftc.gov/system/files/documents/reports/serving-communities-color-staff-report-federal-trade-commissions-efforts-address-fraud-consumer/ftc-communities-color-report_oct_2021-508-v2.pdf</a>.
\4\ See, e.g., Compl. at 3-4, FTC v. Ponte Invs., LLC, No. 1:20-
cv-00177-JJM-PAS (D.R.I. filed Apr. 17, 2020) (causing small
businesses to believe callers were affiliated with the Small
Business Administration); Compl. at 6-7, FTC v. Point Break Media,
LLC, No. 0:18-cv-61017-CMA (S.D. Fla. filed May 7, 2018) (robocalls
to small businesses claiming to be Google); Compl. at 2, FTC v.
<a href="http://DOTAuthority.com">DOTAuthority.com</a>, Inc., No. 16-cv-62186 (S.D. Fla. filed Sept. 13,
2016) (``Many of the consumers harmed by Defendants' false
representations are small businesses with only a few employees and
fewer than five trucks.''); Compl. at 3-4, FTC v. D&S Mktg. Sols.,
LLC, No. 8:16-cv-1435 (M.D. Fla. filed June 6, 2016) (deceiving
small businesses into spending $1.3 million on free government
regulation posters); Compl. at 5, FTC v. Epixtar Corp., No. 03-CV-
8511-DAB (S.D.N.Y. filed Nov. 3, 2003) (defendants sold internet
services to small businesses and falsely represented they were
calling from Verizon or the yellow pages).
\5\ Fed. Trade Comm'n, Fraud Reports: Subcategories over time,
Tableau Public (Nov. 23, 2021), <a href="https://public.tableau.com/app/profile/federal.trade.commission/viz/FraudReports/SubcategoriesOverTime">https://public.tableau.com/app/profile/federal.trade.commission/viz/FraudReports/SubcategoriesOverTime</a>. See also Fed. Trade Comm'n, Consumer Sentinel
Network Data Book 2020, 4 (2021), <a href="https://www.ftc.gov/system/files/documents/reports/consumer-sentinel-network-data-book-2020/csn_annual_data_book_2020.pdf">https://www.ftc.gov/system/files/documents/reports/consumer-sentinel-network-data-book-2020/csn_annual_data_book_2020.pdf</a>.
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Government and business impersonators are fishing for information
they can use to commit identity theft or seek monetary payment, often
requesting funds via wire transfer, gift cards, or (increasingly)
cryptocurrency.\6\ The impersonator can take many forms, posing as, for
example, a lottery official, a government official or employee, or a
representative from a well-known business or charity. Impersonators may
also use implicit representations, such as misleading domain names and
URLs and ``spoofed'' contact information, to create an overall net
impression of legitimacy.\7\
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Government impersonators typically assert an air of authority to stage
their scam, and they use all methods of communication to reach their
targets. These scammers sometimes threaten a target with severe
consequences such as a discontinuation of benefits,\8\ enforcement of
tax liability,\9\ and even arrest or prosecution.\10\ Another observed
tactic of government impersonators is to deceive consumers into paying
for services that would otherwise be free,\11\ or to lure them with
promises of government grants, prizes, or loan forgiveness.\12\
Business impersonators typically get consumers' attention with emails,
telephone calls, or text messages about suspicious activity on
consumers' accounts or computers or supposed good news about a refund
or prize in hopes of gaining trust and receiving personal
information.\13\
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\6\ Fed. Trade Comm'n, Explore Government Imposter Scams,
Tableau Public, <a href="https://public.tableau.com/app/profile/federal.trade.commission/viz/GovernmentImposter/Infographic">https://public.tableau.com/app/profile/federal.trade.commission/viz/GovernmentImposter/Infographic</a> (last
visited Nov. 4, 2021). See also Emma Fletcher, Cryptocurrency buzz
drives record investor scam losses, FTC Data Spotlight (May 17,
2021), <a href="https://www.ftc.gov/news-events/blogs/data-spotlight/2021/05/cryptocurrency-buzz-drives-record-investment-scam-losses">https://www.ftc.gov/news-events/blogs/data-spotlight/2021/05/cryptocurrency-buzz-drives-record-investment-scam-losses</a>.
\7\ See, e.g., Compl. at 8-12, FTC v. Forms Direct, Inc., No.
3:18-cv-06294 (N.D. Cal. Filed Oct. 15, 2018) (government
impersonator used domains including www.usimmigration.us and
<a href="http://www.uscitizenship.info">www.uscitizenship.info</a>); Jay Peters, Hackers are impersonating Zoom,
Microsoft Teams, and Google Meet for phishing scams, The Verge (May
12, 2020), <a href="https://www.theverge.com/2020/5/12/21254921/hacker-domains-impersonating-zoom-microsoft-teams-google-meet-phishing-covid-19">https://www.theverge.com/2020/5/12/21254921/hacker-domains-impersonating-zoom-microsoft-teams-google-meet-phishing-covid-19</a>. Cf. Compl. at 36, FTC v. Associated Cmty. Servs., Inc.,
No. 2:21-cv-10174-DML-CI (E.D. Mich. filed Jan. 26, 2021) (fake
charity scammers ``spoofed'' caller ID to show names like ``Breast
Cancer'' or ``Volunteer Fire'' and local area codes).
\8\ See, e.g., Stipulated Order at 5-6, FTC v. Sun Bright
Ventures LLC, No. 8:14-cv-02153 (M.D. Fla. July 22, 2015); AARP,
Medicare Card Scams, AARP Fraud Resource Ctr., <a href="https://www.aarp.org/money/scams-fraud/info-2019/new-medicare-card.html">https://www.aarp.org/money/scams-fraud/info-2019/new-medicare-card.html</a> (last updated
Feb. 4, 2021); Harriet Edelson, Social Security Administration Warns
of Increase in Telephone Scams, AARP (Mar. 5, 2019), <a href="https://www.aarp.org/money/scams-fraud/info-2019/social-security-scams-psa.html">https://www.aarp.org/money/scams-fraud/info-2019/social-security-scams-psa.html</a>.
\9\ See, e.g., Compl. at 4, FTC v. PHLG Enters. LLC, No. 8:17-
cv-00220 (M.D. Fla. filed Jan. 27, 2017) (misrepresenting IRS
affiliation); see also AARP, IRS Imposter Scam, AARP Fraud Resource
Ctr., <a href="https://www.aarp.org/money/scams-fraud/info-2019/irs.html">https://www.aarp.org/money/scams-fraud/info-2019/irs.html</a>
(last updated Aug. 20, 2021) (Treasury Department reports 2.5
million IRS impersonator calls from 2013-2021).
\10\ See, e.g., Compl. at 7, FTC v. Premier Debt Acquisitions
LLC, No. 1:15-cv-00421 (W.D.N.Y. filed May 11, 2015) (threatening
lawsuits and wage garnishment and posing as state law enforcement);
Compl. at 2, FTC v. Centro Natural Corp., No. 14-23879-CIV (S.D.
Fla. filed Oct. 20, 2014) (threatening arrest or referral to law
enforcement and posing as agents of court officials, government
officials, or lawyers); see also Better Bus. Bureau, 2019 BBB Scam
Tracker Risk Report 26-27 (2020); Emma Fletcher, Government imposter
scams top the list of reported frauds, FTC Data Spotlight (July 1,
2019), <a href="https://www.ftc.gov/news-events/blogs/data-spotlight/2019/07/government-imposter-scams-top-list-reported-frauds">https://www.ftc.gov/news-events/blogs/data-spotlight/2019/07/government-imposter-scams-top-list-reported-frauds</a>.
\11\ See, e.g., Compl. at 26-28, FTC v. On Point Global LLC, No.
19-cv-25046 (S.D. Fla. filed Dec. 9, 2019); Am. Compl. at 5-8, FTC
v. Starwood Consulting, LLC, No. 4:18-cv-02368 (S.D. Tex. filed Mar.
27, 2019); Compl. at 1, Forms Direct, Inc., No. 3:18-cv-06294;
Compl. at 3-4, D&S Mktg. Sols., No. 8:16-cv-1435.
\12\ See, e.g., Compl. at 15, FTC v. Am. Fin. Support Servs.,
Inc., No. 8:19-cv-02109 (C.D. Cal. filed Nov. 4, 2019); Stipulated
Order at 3, FTC v. Nat'l Awards Serv. Advisory, LLC, No. 4:10-cv-
5418-PJH (N.D. Cal. Apr. 19, 2012).
\13\ Fed. Trade Comm'n, Imposter Scams, Fed. Trade Comm'n
Consumer Info., <a href="https://www.consumer.ftc.gov/features/feature-0037-imposter-scams">https://www.consumer.ftc.gov/features/feature-0037-imposter-scams</a> (last visited Nov. 4, 2021); BBB Scam Alert: Receive
a text with a surprise offer? Don't click that link!, Better Bus.
Bureau (Sept. 17, 2021), <a href="https://www.bbb.org/article/scams/25888-bbb-scam-alert-receive-a-text-with-a-surprise-offer-dont-click-that-link">https://www.bbb.org/article/scams/25888-bbb-scam-alert-receive-a-text-with-a-surprise-offer-dont-click-that-link</a>.
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Data reported to the FTC and the Commission's law enforcement
experience indicate strongly that government impersonation scams are
highly prevalent and increasingly harmful. From January 1, 2017 through
September 30, 2021, consumers reported 1,362,996 instances of
government impersonation and associated total losses of roughly
$922,739,109.\14\ The most common such schemes involved Social Security
Administration (SSA) impersonators, with more than 308,000 complaints
alleging SSA impersonation, followed by the IRS (124,000) and Health
and Human Services/Medicare programs (125,000).\15\ There were also
several thousand reports of scammers impersonating government grant-
makers (19,000); FBI, police, or sheriff personnel (11,500); the FTC
(9,500); the Treasury Department (14,000); and the U.S. Postal Service
(6,500).\16\
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\14\ Government Imposter Scams, Tableau Public, supra note 6.
Some figures are rounded to the nearest thousand for ease of
reading.
\15\ Id.
\16\ Id.
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Scammers have been quick to capitalize on the COVID-19 pandemic by
exploiting consumers' concerns about their health and safety, public
misinformation and confusion surrounding the crisis, and the
government's response, which has fueled various COVID-related
impersonation scams.\17\
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\17\ See, e.g., Stipulated Final Order at 4, Ponte Invs., No.
1:20-cv-00177-JJM-PAS; Admin. Compl., Traffic Jam Events, LLC, No.
202 3127 (F.T.C. filed Aug. 10, 2020). See also U.S. Cybersec. &
Infrastructure Sec. Agency, avoid scams related to economic
payments, covid-19 (2020), <a href="https://www.cisa.gov/sites/default/files/publications/Avoid_Scams_Related_to_Economic_Payments_COVID-19.pdf">https://www.cisa.gov/sites/default/files/publications/Avoid_Scams_Related_to_Economic_Payments_COVID-19.pdf</a>;
Off. of Inspector Gen., Fraud Alert: COVID-19 Scams, U.S. Dep't of
Health & Human Servs., <a href="https://oig.hhs.gov/fraud/consumer-alerts/fraud-alert-covid-19-scams/">https://oig.hhs.gov/fraud/consumer-alerts/fraud-alert-covid-19-scams/</a> (last updated Aug. 16, 2021);
Coronavirus Scams--Consumer Resources, Fed. Commc'ns Comm'n, <a href="https://www.fcc.gov/covid-scams">https://www.fcc.gov/covid-scams</a> (last updated Aug. 26, 2021); Treasury
Inspector Gen. for Tax Admin., IRS-Related Coronavirus Scam, U.S.
Dep't of Treasury, <a href="https://www.treasury.gov/tigta/coronavirus.shtml">https://www.treasury.gov/tigta/coronavirus.shtml</a>
(last visited Nov. 4, 2021).
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Business impersonation scams cause a similarly enormous amount of
financial harm to the public. From January 1, 2017 through September
30, 2021, consumers reported being defrauded of roughly $852 million in
753,555 business impersonation incidents.\18\ For business
impersonation frauds reported in the FTC's Consumer Sentinel Network,
consumers most frequently identified impersonators of Amazon and Apple.
Other common impersonations include Publisher's Clearing House, tech
companies such as Microsoft and Facebook, retail banks (Bank of
America, Wells Fargo, Citigroup, and JPMorgan), utilities (Comcast,
Verizon, and AT&T), and consumer goods brands such as Costco and
Walmart.\19\
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\18\ Consumer Sentinel Network (Nov. 22, 2021).
\19\ Phishing Attacks, CrowdStrike (Mar. 25, 2021), <a href="https://www.crowdstrike.com/cybersecurity-101/phishing/">https://www.crowdstrike.com/cybersecurity-101/phishing/</a>.
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Impersonation fraud in general--including business, government,
friend and family, romance, and tech support impersonation--has
increased during the pandemic, with reported total losses of $2 billion
between October 2020 and September 2021 (up 85% year over year).\20\
Since the pandemic began, COVID-specific scam reports have included
12,491 complaints of government impersonation and 8,794 complaints of
business impersonation.\21\ The incidence of business impersonation
climbed higher during the pandemic as commerce shifted significantly
online: There were 273,000 complaints about business impersonation
during the period of July 2020 through June 2021, of which roughly one
third--over 96,000--identify Amazon.\22\ Consumers reported losing more
than $27 million to Amazon impersonation alone.\23\
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\20\ Fed. Trade Comm'n, Fraud Reports: Trends Over Time, Tableau
Public (Nov. 22, 2021), <a href="https://public.tableau.com/app/profile/federal.trade.commission/viz/FraudReports/TrendsOverTime">https://public.tableau.com/app/profile/federal.trade.commission/viz/FraudReports/TrendsOverTime</a>.
\21\ Fed. Trade Comm'n, FTC Covid-19 and Stimulus Reports,
Tableau Public, <a href="https://public.tableau.com/app/profile/federal.trade.commission/viz/COVID-19andStimulusReports/Map">https://public.tableau.com/app/profile/federal.trade.commission/viz/COVID-19andStimulusReports/Map</a> (last
updated Oct. 18, 2021).
\22\ Emma Fletcher, Consumer Protection Data Spotlight, Amazon
Tops List of Impersonated Businesses, FTC Data Spotlight (Oct. 20,
2021), <a href="https://www.ftc.gov/news-events/blogs/data-spotlight/2021/10/amazon-tops-list-impersonated-businesses">https://www.ftc.gov/news-events/blogs/data-spotlight/2021/10/amazon-tops-list-impersonated-businesses</a>. But see supra n.2 (uptick
in complaints maybe result of adding new data contributors to the
Consumer Sentinel Network database).
\23\ See Fletcher, supra note 22.
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Although the Commission has brought many cases involving
impersonator scams under Section 5 of the FTC ACT, 15 U.S.C. 45, its
current remedial authority is limited. The U.S. Supreme Court recently
held that equitable monetary relief, including consumer redress, is not
available under Section 13(b) of the FTC Act.\24\ Additionally,
consumer redress under
[[Page 72903]]
Section 19(b), 15 U.S.C. 57b(a) through (b), is limited and challenging
to obtain without a rule violation. The Commission believes a rule
addressing certain types of unfair or deceptive acts or practices
involving impersonation, including affiliation and endorsement, of
government and businesses could help reduce the level of fraud in this
area and serve as an additional deterrent for bad actors in the future
because such a trade regulation rule would subject first-time violators
to civil penalties.\25\ It would also enable the Commission to obtain
redress for consumers who lost money to impersonation scams.
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\24\ See AMG Cap. Mgmt., LLC v. FTC, 141 S. Ct. 1341, 1352
(2021).
\25\ See 15 U.S.C. 45(m)(1)(A); see also COVID-19 Consumer
Protection Act of the 2021 Consolidated Appropriations Act Sec.
1401, Pub. L. 116-260, 134 Stat. 1182 (permitting the Commission to
seek civil penalties for violations of Section 5 of the FTC Act
associated with ``the treatment, cure, prevention, mitigation, or
diagnosis of COVID-19'' or ``a government benefit related to COVID-
19'').
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B. Objectives and Regulatory Alternatives
The Commission requests input on whether and how it should use its
authority under Section 18 of the FTC Act, 15 U.S.C. 57a, to address
deceptive or unfair acts or practices involving impersonation.
Specifically, the Commission proposes addressing the following
practices, which have been the subject of numerous Commission
investigations and law enforcement actions: (a) Impersonation of a
government official or agency by a person or organization without
authority to act on behalf of that government; \26\ (b) impersonation
of a business or its agents by a person or organization without
authority to act on behalf of that business; \27\ and (c) entities that
may provide the means and instrumentalities for these impersonators to
operate.\28\ Both the Mortgage Assistance Relief Services (MARS) Rule
and the Telemarketing Sales Rule (TSR) already proscribe impersonation
involving false government and business (including nonprofit)
affiliation and endorsement claims.\29\ The FTC has filed a number of
law enforcement actions to protect consumers and small businesses from
these types of impersonation claims outside of the purview of these
rules.\30\ An impersonator rule that builds on the existing sector- and
method-specific rules could more comprehensively outlaw government and
business impersonation. By focusing on practices that are the subject
of its law enforcement experience and the subject of consumer fraud
reports, the Commission anticipates streamlining this proposed
rulemaking for the benefit of consumers.
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\26\ E.g., Compl. at 14, FTC v. Alcazar Networks, Inc., No.
6:20-cv-2200 (M.D. Fla. filed Dec. 3, 2020); Stipulated Final Order
at 4, Ponte Invs., LLC, No. 1:20-cv-00177-JJM-PAS; Compl. at 9-11,
FTC v. Critical Res. Mediation, LLC, No. 1:20-cv-03932 (N.D. Ga.
filed Sept. 22, 2020); Admin. Compl., Traffic Jam Events, No. 202
3127; Stipulated Order at 2, Starwood Consulting, No. 4:18-cv-2368
(Dec. 10, 2019); Compl. at 27-28, On Point Global LLC, No. 19-cv-
25046; Compl. at 15, Am. Fin. Support Servs., Inc., No. 8:19-cv-
02109; Stipulated Order at 3-5, Forms Direct, Inc., No. 3:18-cv-
06294 (Dec. 7, 2018); Stipulated Order at 6-7, FTC v. Vantage Point
Servs., LLC, No. 1:15-cv-0006 (W.D.N.Y. Sept. 17, 2018); Compl. at
7, United States v. Sunkey Publ'g, Inc., No. 3:18-cv-01444 (N.D.
Ala. filed Sept. 6, 2018); Final J. at 5-6, <a href="http://DOTAuthority.com">DOTAuthority.com</a>, No.
16-62186-civ (Apr. 13, 2018); Compl. at 10, FTC v. 4 Star Resol.
LLC, No. 1:15-cv-112S (W.D.N.Y. filed Mar. 20, 2018); Stipulated
Order at 3, D&S Marketing Sols., No. 8:16-cv-1435 (July 10, 2017);
Compl. at 4, PHLG Enters., No. 8:17-cv-00220; J. at 5-6, FTC v. Fed.
Check Processing, Inc., No. 1:14-cv-00122 (W.D.N.Y. Oct. 13, 2016);
Permanent Inj. & Order at 8, FTC v. CD Capital Invs., LLC, No. 8:14-
cv-01033 (C.D. Cal. Aug. 22, 2016); Order at 5, United States v.
Commercial Recovery Sys., Inc., No. 4:15-cv-36 (E.D. Tex. filed Apr.
18, 2016); Am. Final J. at 8, FTC v. Lake, No. 8:15-cv-00585-CJC
(C.D. Cal. Mar. 22, 2016); Compl. at 3-5, FTC v. Mun. Recovery
Servs. Corp., No. 3:15-cv-04064 (N.D. Tex. filed Dec. 24, 2015);
Stipulated Final Order at 6-7, Premier Debt Acquisitions, No. 1:15-
cv-00421 (Jan. 7, 2016); Compl. at 4, 6, FTC v. Nat'l Payment
Processing LLC, No. 1:15-cv-3811 (N.D. Ga. filed Oct. 30, 2015);
Stipulated Order at 3, FTC v. Broadway Global Master, Inc., No.
2:12-cv-0855 (E.D. Cal. filed Sept. 10, 2015); Final Order at 4, FTC
v. First Time Credit Sol., Corp., No. 2:15-cv-01921 (C.D. Cal. July
30, 2015); Final Order at 6, Sun Bright Ventures LLC, No. 8:14-cv-
02153; Final Order at 2, 5, FTC v. Centro Natural Corp., No. 1:14-
cv-23879 (S.D. Fla. July 15, 2015); Default J. & Final Order at 4-5,
11, FTC v. Williams, Scott & Assocs., No. 1:14-cv-1599-HLM (N.D. Ga.
Apr. 2, 2015); Final Order at 7, FTC v. First Consumers, LLC, No.
2:14-cv-01608 (E.D. Pa. Feb. 19, 2015); Stipulated Final Order at 9,
FTC v. FMC Counseling Servs., Inc., No. 0:14-cv-61545 (S.D. Fla.
Dec. 15, 2014); Default J. & Order at 3, 7-9, FTC v. AFD Advisors,
LLC, No. 1:13-cv-06420 (N.D. Ill. Aug. 26, 2014); Final Default J. &
Order at 4, 10-11, FTC v. Cuban Exch., Inc., No. 1:12-cv-05890-NGG-
RML (E.D.N.Y. July 30, 2014); Stipulated Final J. & Order at 11-12,
FTC v. Am. Mortg. Consulting Grp., No. 8:12-cv-01561 (S.D. Cal.
Sept. 18, 2013); Stipulated Order at 10, FTC v. Freedom Cos. Mktg.,
Inc., No. 1:12-cv-05743 (N.D. Ill. Dec. 21, 2012); Stipulated Final
J. & Order at 5-6, FTC v. Am. Credit Crunchers, LLC, No. 1:12-cv-
01028 (N.D. Ill. Oct. 10, 2012); Compl. at 13-14, FTC v. Springtech
77376, LLC, No. 4:12-cv-04631-PJH (N.D. Cal. filed Sept. 5, 2012);
Stipulated Final Order at 9-11, FTC v. Mallett, No. 1:11-cv-01664-
CKK (D.D.C. June 14, 2012); Compl. at 11-13, 15, Nat'l Awards Serv.
Advisory, No. 4:10-cv-5418-PJH (filed Apr. 19, 2012); Stipulated
Final J. at 4, FTC v. Immigr. Ctr., No. 3:11-cv-00055-LRH (D. Nev.
Dec. 27, 2011); Stipulated Final Order at 11, 13, FTC v. Residential
Relief Found., Inc., No. 1:10-cv-3214 (D. Md. Sept. 28, 2011);
Compl. at 6-7, FTC v. Loma Int'l. Bus. Group, Inc., No. 1:11-cv-
01483-MJG (D. Md. filed June 1, 2011). See also Alvaro Puig,
Warning: Email from FTC Chair Lina M. Khan about Coronavirus money
is fake, FTC Consumer Info. (Aug. 19, 2021); Scott Graham, Why the
US PTO is Seeking to Register Its Own Trademarks, Nat'l L. J. (Aug.
5, 2021), <a href="https://www.law.com/nationallawjournal/2021/08/05/why-the-uspto-is-seeking-to-register-its-own-trademarks/?slreturn=20210816155611">https://www.law.com/nationallawjournal/2021/08/05/why-the-uspto-is-seeking-to-register-its-own-trademarks/?slreturn=20210816155611</a>; Better Bus. Bureau, Government Imposter
Scams (July 2020), <a href="https://www.bbb.org/globalassets/local-bbbs/council-113/media/scam-studies/bbb-government-impostors-study.pdf">https://www.bbb.org/globalassets/local-bbbs/council-113/media/scam-studies/bbb-government-impostors-study.pdf</a>.
\27\ E.g., Compl. at 6-9, FTC v. Nat'l Web Design, LLC, No.
2:20-cv-00846 (D. Utah filed Nov. 30, 2020) (Amazon Affiliates);
Compl. at 8, FTC v. One or More Unknown Parties Deceiving Consumers
into Making Purchases Through <a href="http://www.cleanyos.com">www.cleanyos.com</a>, No. 5:20-cv-02494
(N.D. Ohio filed Nov. 4, 2020) (Lysol and Clorox); Compl. at 8-11,
13, FTC v. Disruption Theory LLC, No. 3:20-cv-06919VC (N.D. Cal.
filed Oct. 5, 2020) (Global Tel*Link/Securus); Compl. at 10, FTC v.
Click4Support, LLC, No. 2:15-cv-05777 (E.D. Pa. filed Oct. 26, 2015)
(Apple/Microsoft); Compl. at 8-9, FTC v. Modern Tech. Inc., No. 13-
cv-8257 (N.D. Ill. filed Nov. 18, 2013) (Yellow Pages). See also
Brooke Crothers, Amazon, Apple, Microsoft among top brands used by
scammers, Fox <a href="http://News.com">News.com</a> (Apr. 17, 2021), <a href="https://www.foxnews.com/tech/amazon-apple-microsoft-top-brands-scammers">https://www.foxnews.com/tech/amazon-apple-microsoft-top-brands-scammers</a>; Alvaro Puig, Fake
calls from Apple and Amazon support: What you need to know, FTC
Consumer Info. (Dec. 3, 2020), <a href="https://www.consumer.ftc.gov/blog/2020/12/fake-calls-apple-and-amazon-support-what-you-need-know">https://www.consumer.ftc.gov/blog/2020/12/fake-calls-apple-and-amazon-support-what-you-need-know</a>;
Microsoft Corp., Protect yourself from tech support scams, Microsoft
Support, <a href="https://support.microsoft.com/en-us/windows/protect-yourself-from-tech-support-scams-2ebf91bd-f94c-2a8a-e541-f5c800d18435">https://support.microsoft.com/en-us/windows/protect-yourself-from-tech-support-scams-2ebf91bd-f94c-2a8a-e541-f5c800d18435</a> (last visited Nov. 4, 2021).
\28\ See, e.g., Order for Permanent Inj. & Monetary J., FTC v.
Moore, No. 5:18-cv-01960, 2018 WL 4510707, at *1 (C.D. Cal. Sept.
17, 2018) (operator of <a href="http://fakepaystub.com">fakepaystub.com</a> ``permanently restrained and
enjoined from providing to others the means and instrumentalities
with which to make, expressly or by implication, any statement or
representation of material fact that misrepresents . . . any
person's identity''); Compl. at 3-5 & Ex. H, FTC v. Moore, No. 5:18-
cv-01960 (C.D. Cal. filed Sept. 13, 2018).
\29\ See Regulation O (Mortgage Assistance Relief Services), 12
CFR 1015.3(b)(3) (prohibiting misrepresentations that ``a mortgage
assistance relief service is affiliated with, endorsed or approved
by, or otherwise associated with: (i) The United States government,
(ii) Any governmental homeowner assistance plan, (iii) Any Federal,
State, or local government agency, unit, or department, (iv) Any
nonprofit housing counselor agency or program, (v) The maker,
holder, or servicer of the consumer's dwelling loan, or (vi) Any
other individual, entity, or program''); Telemarketing Sales Rule,
16 CFR 310.3(a)(2)(vii) (prohibiting misrepresentations with respect
to a ``seller's or telemarketer's affiliation with, or endorsement
or sponsorship by, any person or government entity'').
\30\ See, e.g., Compl. at 2-3, FTC v. First Time Credit Sol.,
Corp., No. 2:15-cv-01921-DDP-PJW (C.D. Cal. filed Mar. 16, 2015)
(company used false affiliation with the FTC to market bogus credit
repair services to Spanish-speaking consumers); Compl. at 8, FTC v.
Gerber Prods. Co., No. 2:14-cv-06771-SRC-CLW (D.N.J. filed Oct. 30,
2014) (company misrepresented its baby formula qualified for or
received approval for a health claim from the U.S. Food and Drug
Administration); Compl. at 3-4, Ponte Invs., LLC, No. 1:20-cv-00177-
JJM-PAS (causing small businesses to believe callers were affiliated
with the Small Business Administration).
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The Commission seeks comment on, among other things, the prevalence
of each of the above practices, the costs and benefits of a rule that
would address them, and alternative or additional action to such a
rulemaking, such as the publication of additional consumer and business
education materials and hosting of public workshops. In their replies,
commenters should provide any available evidence and data that support
their position, such as empirical data, consumer-
[[Page 72904]]
perception studies, and consumer complaints.
C. The Rulemaking Process
The Commission seeks the broadest participation in the rulemaking.
It encourages all interested parties to submit written comments. The
Commission also requests input in analyzing various options and in
drafting a proposed rule. After reviewing comments submitted in
response to this advance notice of proposed rulemaking, the Commission
may proceed with further steps outlined in Section 18 of the FTC Act
and Part 1, Subpart B, of the Commission's Rules of Practice.
III. Request for Comments
Members of the public are invited to comment on any issues or
concerns they believe are relevant or appropriate to the Commission's
consideration of the proposed rulemaking. The Commission requests that
factual data upon which the comments are based be submitted with the
comments. In addition to the issues raised above, the Commission
solicits public comment on the specific questions identified below.
These questions are designed to assist the public and should not be
construed as a limitation on the issues on which public comment may be
submitted.
Questions
(1) How widespread is the impersonation of government entities,
such as agencies of the U.S., state, and local governments? To what
extent are claims made expressly and to what extent are they made by
implication, such as claims of endorsement or affiliation? What types
of communication and technology are used to facilitate the
impersonation of government entities? What data sources did you rely on
in formulating your answer(s)?
(2) How widespread is the impersonation of businesses? To what
extent are claims made expressly and to what extent are they made by
implication, such as claims of endorsement or affiliation? What types
of communication and technology are used to facilitate the
impersonation of businesses? What data sources did you rely on in
formulating your answer(s)?
(3) How widespread is the impersonation of individuals or entities
other than governments and businesses in interstate commerce? To what
extent are claims made expressly and to what extent are they made by
implication, such as claims of endorsement or affiliation? What types
of communication and technology are used to facilitate the
impersonation of individuals or entities other than governments and
businesses? What data sources did you rely on in formulating your
answer(s)?
(4) How should a rule addressing the practices described in
Questions 1 through 3, above, define the term ``impersonation''? What
claims, images, or symbols are likely to give rise to the net
impression of government or business impersonation? What evidence
supports your answer(s)?
(5) For the practices described in Questions 1 through 3, above,
are there individuals or entities that provide the means and
instrumentalities for impersonators to conduct such practices? If so,
what types of goods or services do they provide that significantly
enable impersonators to conduct such practices? What type of consumer
injury does this cause? Under what circumstances should the provision
of such goods or services be considered deceptive or unfair? What
evidence supports your answer(s)?
(6) For any practices discussed in Questions 1 through 3, above,
does the practice cause consumer injury? If so, what type of consumer
injury does it cause? What evidence demonstrates such practices cause
consumer injury? Please provide the evidence.
(7) For each of the practices described in Questions 1 through 3,
above, are there circumstances in which such practices would not be
deceptive or unfair? If so, what are those circumstances and could and
should the Commission exclude such circumstances from the scope of any
rulemaking? Why or why not?
(8) What existing laws and regulations, other than the FTC Act, if
any, address the practices described in Questions 1 through 3, above?
How do those laws and regulations affect consumers? How do those laws
and regulations affect businesses, particularly small businesses? What
evidence supports your answer(s)?
(9) Is there a need for new regulations to prevent the practices
described in Questions 1 through 3, above? If yes, why? If no, why not?
What evidence supports your answer(s)?
(10) How should a rule addressing the practices described in
Questions 1 through 3, above, be crafted to maximize the benefits to
consumers while minimizing the costs to businesses? What evidence
supports your answer(s)?
(11) Should the Commission consider publishing additional consumer
and business education materials or hosting public workshops to reduce
consumer harm associated with the practices described in Questions 1
through 3, above? If so, what should such education materials include,
and how should the Commission communicate that information to consumers
and businesses?
(12) What alternatives to regulations should the Commission
consider to address the practices described in Questions 1 through 3,
above? Would those alternatives obviate the need for regulation? If so,
why? If not, why not? What evidence supports your answer(s)?
(13) Are there other commercial acts or practices involving
impersonation that are deceptive or unfair that should be addressed in
the proposed rulemaking? If so, describe the practices. How widespread
are the practices? Please answer Questions 4 through 11, above, with
respect to these practices.
IV. Comment Submissions
You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before February 22,
2022. Write ``Impersonation ANPR; FTC File No. R207000'' 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 website <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Because of the public health emergency in response to the COVID-19
outbreak and the agency's heightened security screening, postal mail
addressed to the Commission will be subject to delay. We strongly
encourage you to submit your comments online through the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. To ensure the Commission considers your
online comment, please follow the instructions on the web-based form.
If you file your comment on paper, write ``Impersonation ANPR; FTC
File No. R207000'' on your comment and on the envelope, and mail your
comment to the following address: Federal Trade Commission, Office of
the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex B),
Washington, DC 20580, or deliver your comment by courier or overnight
service to the following address: Federal Trade Commission, Office of
the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite
5610 (Annex B), Washington, DC 20024.
Because your comment will be placed on the public record, you are
solely responsible for making sure your comment does not include any
sensitive or confidential information. Your comment should not contain
sensitive personal information, such as your or anyone else's Social
Security number; date of birth; driver's license number or
[[Page 72905]]
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 your comment
does not include any sensitive health information, such as medical
records or other individually identifiable health information. In
addition, your comment should not include any ``[t]rade secret or any
commercial or financial information 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)--including
competitively sensitive information such as costs, sales statistics,
inventories, formulas, patterns, devices, manufacturing processes, or
customer names.
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).
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). Your comment
will be kept confidential only if the General Counsel grants your
request in accordance with the law and the public interest. Once your
comment has been posted publicly at <a href="http://www.regulations.gov">www.regulations.gov</a>--as legally
required by FTC Rule 4.9(b), 16 CFR 4.9(b)--we cannot redact or remove
your comment, unless you submit a confidentiality request that meets
the requirements for such treatment under FTC Rule 4.9(c), and the
General Counsel grants that request.
Visit the FTC website to read this document and the news release
describing it. The 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 it receives on or before February 22, 2022.
For information on the Commission's privacy policy, including routine
uses permitted by the Privacy Act, see <a href="https://www.ftc.gov/siteinformation/privacypolicy">https://www.ftc.gov/siteinformation/privacypolicy</a>.
By direction of the Commission.
April J. Tabor,
Secretary.
Note: The following appendix will not appear in the Code of
Federal Regulations.
Appendix--Statement Issued on December 16, 2021
Statement of Chair Lina M. Khan Regarding the Advance Notice of
Proposed Rulemaking on Government & Business Impersonation
Government and business impersonation schemes cheat American
consumers and small businesses out of billions of dollars every
year. These scammers often pretend to be working for government
institutions--like the Social Security Administration, the IRS, or
law enforcement--and tell targets that if they don't hand over money
or submit sensitive personal information, they could lose a
government benefit, face a tax liability--or even be arrested.
Sometimes these fraudsters pull off these schemes instead by
pretending to be working for a well-known brand or company.
Both our enforcement work and consumer data suggest that
government and business impersonation scams appear highly prevalent
and increasingly harmful. These scams have been the top category of
fraud reports and the largest source of total reported consumer
financial losses for several year.\1\ Impersonation fraud in general
has skyrocketed during the pandemic--with impersonation fraudsters
scamming Americans out of around $2 billion between October of last
year and September of this year, an 85% increase year-over-year.\2\
Government and business impersonators have shamelessly capitalized
on the health, safety, and financial worries catalyzed by the COVID-
19 crisis--not only tricking Americans into handing over their money
or sensitive personal information, but also impeding access to
needed goods, services, and benefits. While these scams affect
consumers from all walks of life, our data show that scammers often
specifically target the most vulnerable, including senior citizens,
communities of color, and small businesses.\3\
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\1\ Fed. Trade Comm'n, Fraud Reports: Top Reports, Tableau
Public (Nov. 23, 2021), <a href="https://public.tableau.com/app/profile/federal.trade.commission/viz/FraudReports/TopReports">https://public.tableau.com/app/profile/federal.trade.commission/viz/FraudReports/TopReports</a>; see also, Fed.
Trade Comm'n, Consumer Sentinel Network Data Book 2020, 4-8 (2021),
<a href="https://www.ftc.gov/system/files/documents/reports/consumer-sentinel-network-databook-2020/csn_annual_data_book_2020.pdf">https://www.ftc.gov/system/files/documents/reports/consumer-sentinel-network-databook-2020/csn_annual_data_book_2020.pdf</a>.
\2\ Fed. Trade Comm'n, Fraud Reports: Trends Over Time, Tableau
Public (November 22, 2021), <a href="https://public.tableau.com/app/profile/federal.trade.commission/viz/FraudReports/FraudFacts">https://public.tableau.com/app/profile/federal.trade.commission/viz/FraudReports/FraudFacts</a>.
\3\ Fed. Trade Comm'n, Serving Communities of Color: A Staff
Report on the Federal Trade Commission's Efforts to Address Fraud
and Consumer Issues Affecting Communities of Color (Oct. 2021)
(noting that impersonator fraud is the highest complaint category
for Latino communities and the second highest for Black
communities).
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The FTC routinely prosecutes these scams and has returned
millions of dollars to defrauded consumers. In the last fiscal year
alone, FTC's law enforcement work delivered more than $403 million
back to consumers.\4\ However, the recent Supreme Court decision in
AMG Capital Management, LLC v. FTC has significantly curbed our
ability to recover money for the victims of these schemes.\5\
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\4\ Fed. Trade Comm'n, Protecting Older Consumers 2020-2021: A
Report of the Federal Trade Commission (Oct. 18, 2021) at 17,
<a href="https://www.ftc.gov/system/files/documents/reports/protecting-older-consumers-2020-2021-report-federal-trade-commission/protecting-older-consumers-report-508.pdf">https://www.ftc.gov/system/files/documents/reports/protecting-older-consumers-2020-2021-report-federal-trade-commission/protecting-older-consumers-report-508.pdf</a>.
\5\ AMG Capital Management, LLC v. FTC, 141 S.Ct. 1341 (Apr.
2021). For government and impersonation cases that involve
violations of current FTC rules, such as the Telemarketing Sale
Rule, the Commission can still file actions in federal district
court seeking either consumer redress under Section 19 or civil
penalties under Section 5(m)(1)(A) of the FTC Act. But numerous
types of impersonation schemes are not captured by these existing
FTC rules. For example, numerous enforcement actions in which the
FTC returned money to victims of impersonation fraud--such as FTC v.
Forms Direct, which returned $2.2 million to individuals, or FTC v.
Corporate Compliance Services, which returned over $1 million to
small businesses--do not fall under existing FTC rules. See, e.g.,
FTC v. Forms Direct, Inc. (American Immigration Center), No. 3:18-
cv-06294 (N.D. Cal. filed Oct. 16, 2018); FTC v. Corp. Compliance
Servs., Case No. 4:18-cv-02368 (S.D. Tex. Filed July 10, 2018); FTC
v. <a href="http://DOTAuthority.com">DOTAuthority.com</a>, Inc., No. 16-cv-62186 (S.D. Fla. filed Sept.
13, 2016); FTC v. Springtech 77376, LLC, also d/b/a <a href="http://Cedarcide.com">Cedarcide.com</a>,
No. 4:12-cv-04631-PJH (N.D. Cal. filed Sept. 5, 2012); see also, FTC
v. Gerber Products Co., No. 2:14-cv-06771-SRC-CLW (D.N.J. filed Oct.
30, 2014) (despite no consumer redress, case illustrates how
businesses can make false claims of affiliation or endorsement
outside of current FTC rules).
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To ensure that we can continue to protect Americans from these
fraudsters, our staff has recommended that we initiate a rulemaking
proceeding to codify a prohibition on impersonator fraud. I strongly
support the issuance of this Advance Notice of Proposed Rulemaking.
It is critical that our 13(b) authority be restored. It is also
incumbent on the Commission to use the full range of tools that
Congress has given us to ensure that Americans are protected from
these fraudsters.
A rulemaking in this area could likely have a market-wide impact
and serve as a deterrent for bad actors, given that a rule here
would subject first-time violators to civil penalties.\6\ It could
also enable the Commission to obtain redress for the people who lose
money to these impersonation scams. This effort is particularly
critical post-AMG and would represent one of the most significant
anti-fraud initiatives at the agency in decades.
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\6\ See 15 U.S.C. 45(m)(1)(A); see also COVID-19 Consumer
Protection Act of the 2021 Consolidated Appropriations Act Section
1401, Public Law 116-260, 134 Stat. 1182 (permitting the Commission
to seek civil penalties for violations of Section 5 of the FTC Act
that are associated with ``the treatment, cure, prevention,
mitigation, or diagnosis of COVID-19'' or ``a government benefit
related to COVID-19'').
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I urge my colleagues to support this ANPR and broader efforts to
use our full authority to protect Americans from government and
business impersonation scams. I will look forward to public comments
and engagement during our rulemaking proceeding to inform this
effort.
[FR Doc. 2021-27731 Filed 12-22-21; 8:45 am]
BILLING CODE 6750-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.