Trade Regulation Rule on Impersonation of Government and Businesses

As Enacted ( Federal Register)

Cited authorities 8

Cited in

Published date	23 December 2021
Record Number	2021-27731
Section	Proposed rules
Court	Federal Trade Commission

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Federal Register / Vol. 86, No. 244 / Thursday, December 23, 2021 / Proposed Rules

Imposter Scams, Fed. Trade Comm’n, https://

www.consumer.ftc.gov/features/feature-0037-

imposter-scams (last visited Nov. 4, 2021).

Fed. Trade Comm’n, Fraud Reports:

Subcategories over time: Imposter Scams, Tableau

Public (Nov. 23, 2021), https://public.tableau.com/

app/profile/federal.trade.commission/viz/

FraudReports/SubcategoriesOverTime. 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), https://

public.tableau.com/app/profile/

federal.trade.commission/viz/FraudReports/

TopReports. For a list of Sentinel data contributors,

see https://www.ftc.gov/enforcement/consumer-

sentinel-network/data-contributors.

See, e.g., AARP, Consumer Fraud in America:

The Black Experience (Aug. 2021), https://

www.aarp.org/content/dam/aarp/research/surveys_

statistics/econ/2021/consumer-fraud-black-

experience.doi.10.26419-2Fres.00456.001.pdf;

AARP, Consumer Fraud in America: The Latino

Experience (Aug. 2021), https://www.aarp.org/

content/dam/aarp/research/surveys_statistics/econ/

2021/consumer-fraud-latino-experience-

report.doi.10.26419-2Fres.00455.001.pdf; 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 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.

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.

DOTAuthority.com, 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).

Fed. Trade Comm’n, Fraud Reports:

Subcategories over time, Tableau Public (Nov. 23,

2021), https://public.tableau.com/app/profile/

federal.trade.commission/viz/FraudReports/

SubcategoriesOverTime. See also Fed. Trade

Comm’n, Consumer Sentinel Network Data Book

2020, 4 (2021), https://www.ftc.gov/system/files/

documents/reports/consumer-sentinel-network-

data-book-2020/csn_annual_data_book_2020.pdf.

Fed. Trade Comm’n, Explore Government

Imposter Scams, Tableau Public, https://

public.tableau.com/app/profile/

federal.trade.commission/viz/GovernmentImposter/

Infographic (last visited Nov. 4, 2021). See also

Emma Fletcher, Cryptocurrency buzz drives record

investor scam losses, FTC Data Spotlight (May 17,

2021), https://www.ftc.gov/news-events/blogs/data-

spotlight/2021/05/cryptocurrency-buzz-drives-

record-investment-scam-losses.

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

Continued

Commerce (Department) published a

proposed rule, ‘‘Securing the

Information and Communications

Technology and Services Supply Chain;

Connected Software Applications,’’

(Connected Software Applications Rule)

to implement provisions of Executive

Order 14034, ‘‘Protecting Americans’

Sensitive Data from Foreign

Adversaries,’’ 86 FR 31423 (June 11,

2021). Commenters have noted that the

original comment deadline of December

27, 2021, may constrain those seeking to

comment on the rule and have asked

that the comment date be extended. The

Department agrees and will extend the

comment period for this proposed rule

to January 11, 2022.

Trisha Anderson,

Deputy Assistant Secretary for Intelligence

and Security, U.S. Department of Commerce.

[FR Doc. 2021–27730 Filed 12–22–21; 8:45 am]

BILLING CODE 3510–20–P

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.

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 https://www.regulations.gov. 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),

cbrown3@ftc.gov.

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.

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.

These scams often specifically

target older consumers and

communities of color

as well as small

businesses.

Two prevalent categories of

impersonation scams most frequently

reported by consumers are government

impersonators and business

impersonators.

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.

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.

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www.uscitizenship.info); Jay Peters, Hackers are

impersonating Zoom, Microsoft Teams, and Google

Meet for phishing scams, The Verge (May 12, 2020),

https://www.theverge.com/2020/5/12/21254921/

hacker-domains-impersonating-zoom-microsoft-

teams-google-meet-phishing-covid-19. 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).

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., https://www.aarp.org/money/

scams-fraud/info-2019/new-medicare-card.html

(last updated Feb. 4, 2021); Harriet Edelson, Social

Security Administration Warns of Increase in

Telephone Scams, AARP (Mar. 5, 2019), https://

www.aarp.org/money/scams-fraud/info-2019/

social-security-scams-psa.html.

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.,

https://www.aarp.org/money/scams-fraud/info-

2019/irs.html (last updated Aug. 20, 2021)

(Treasury Department reports 2.5 million IRS

impersonator calls from 2013–2021).

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), https://www.ftc.gov/news-events/blogs/

data-spotlight/2019/07/government-imposter-

scams-top-list-reported-frauds.

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.

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).

Fed. Trade Comm’n, Imposter Scams, Fed.

Trade Comm’n Consumer Info., https://

www.consumer.ftc.gov/features/feature-0037-

imposter-scams (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), https://www.bbb.org/article/scams/25888-

bbb-scam-alert-receive-a-text-with-a-surprise-offer-

dont-click-that-link.

Government Imposter Scams, Tableau Public,

supra note 6. Some figures are rounded to the

nearest thousand for ease of reading.

Id.

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), https://

www.cisa.gov/sites/default/files/publications/

Avoid_Scams_Related_to_Economic_Payments_

COVID-19.pdf; Off. of Inspector Gen., Fraud Alert:

COVID–19 Scams, U.S. Dep’t of Health & Human

Servs., https://oig.hhs.gov/fraud/consumer-alerts/

fraud-alert-covid-19-scams/ (last updated Aug. 16,

2021); Coronavirus Scams—Consumer Resources,

Fed. Commc’ns Comm’n, https://www.fcc.gov/

covid-scams (last updated Aug. 26, 2021); Treasury

Inspector Gen. for Tax Admin., IRS-Related

Coronavirus Scam, U.S. Dep’t of Treasury, https://

www.treasury.gov/tigta/coronavirus.shtml (last

visited Nov. 4, 2021).

Consumer Sentinel Network (Nov. 22, 2021).

Phishing Attacks, CrowdStrike (Mar. 25, 2021),

https://www.crowdstrike.com/cybersecurity-101/

phishing/.

Fed. Trade Comm’n, Fraud Reports: Trends

Over Time, Tableau Public (Nov. 22, 2021), https://

public.tableau.com/app/profile/

federal.trade.commission/viz/FraudReports/

TrendsOverTime.

Fed. Trade Comm’n, FTC Covid-19 and

Stimulus Reports, Tableau Public, https://

public.tableau.com/app/profile/

federal.trade.commission/viz/COVID-

19andStimulusReports/Map (last updated Oct. 18,

2021).

Emma Fletcher, Consumer Protection Data

Spotlight, Amazon Tops List of Impersonated

Businesses, FTC Data Spotlight (Oct. 20, 2021),

https://www.ftc.gov/news-events/blogs/data-

spotlight/2021/10/amazon-tops-list-impersonated-

businesses. But see supra n.2 (uptick in complaints

maybe result of adding new data contributors to the

Consumer Sentinel Network database).

See Fletcher, supra note 22.

See AMG Cap. Mgmt., LLC v. FTC, 141 S. Ct.

1341, 1352 (2021).

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,

enforcement of tax liability,

and even

arrest or prosecution.

Another

observed tactic of government

impersonators is to deceive consumers

into paying for services that would

otherwise be free,

or to lure them with

promises of government grants, prizes,

or loan forgiveness.

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.

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.

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).

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).

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.

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.

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.

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).

Since the pandemic began,

COVID-specific scam reports have

included 12,491 complaints of

government impersonation and 8,794

complaints of business impersonation.

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.

Consumers reported

losing more than $27 million to Amazon

impersonation alone.

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.

Additionally, consumer redress under

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See 15 U.S.C. 45(m)(1)(A); see also COVID–19

Consumer Protection Act of the 2021 Consolidated

Appropriations Act §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’’).

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,

DOTAuthority.com, 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

2021), https://www.law.com/nationallawjournal/

2021/08/05/why-the-uspto-is-seeking-to-register-its-

own-trademarks/?slreturn=20210816155611; Better

Bus. Bureau, Government Imposter Scams (July

2020), https://www.bbb.org/globalassets/local-bbbs/

council-113/media/scam-studies/bbb-government-

impostors-study.pdf.

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 www.cleanyos.com, 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

News.com (Apr. 17, 2021), https://

www.foxnews.com/tech/amazon-apple-microsoft-

top-brands-scammers; Alvaro Puig, Fake calls from

Apple and Amazon support: What you need to

know, FTC Consumer Info. (Dec. 3, 2020), https://

www.consumer.ftc.gov/blog/2020/12/fake-calls-

apple-and-amazon-support-what-you-need-know;

Microsoft Corp., Protect yourself from tech support

scams, Microsoft Support, https://

support.microsoft.com/en-us/windows/protect-

yourself-from-tech-support-scams-2ebf91bd-f94c-

2a8a-e541-f5c800d18435 (last visited Nov. 4, 2021).

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 fakepaystub.com ‘‘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).

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’’).

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).

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.

would also enable the Commission to

obtain redress for consumers who lost

money to impersonation scams.

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;

(b) impersonation of a

business or its agents by a person or

organization without authority to act on

behalf of that business;

and (c) entities

that may provide the means and

instrumentalities for these

impersonators to operate.

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.

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.

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.

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-

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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

https://www.regulations.gov.

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 https://www.regulations.gov

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

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Fed. Trade Comm’n, Fraud Reports: Top

Reports, Tableau Public (Nov. 23, 2021), https://

public.tableau.com/app/profile/

federal.trade.commission/viz/FraudReports/

TopReports; see also, Fed. Trade Comm’n,

Consumer Sentinel Network Data Book 2020, 4–8

(2021), https://www.ftc.gov/system/files/

documents/reports/consumer-sentinel-network-

databook-2020/csn_annual_data_book_2020.pdf.

Fed. Trade Comm’n, Fraud Reports: Trends

Over Time, Tableau Public (November 22, 2021),

https://public.tableau.com/app/profile/

federal.trade.commission/viz/FraudReports/

FraudFacts.

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).

Fed. Trade Comm’n, Protecting Older

Consumers 2020–2021: A Report of the Federal

Trade Commission (Oct. 18, 2021) at 17, https://

www.ftc.gov/system/files/documents/reports/

protecting-older-consumers-2020-2021-report-

federal-trade-commission/protecting-older-

consumers-report-508.pdf.

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. DOTAuthority.com, Inc., No. 16–

cv–62186 (S.D. Fla. filed Sept. 13, 2016); FTC v.

Springtech 77376, LLC, also d/b/a Cedarcide.com,

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).

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’’).

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 www.regulations.gov—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

permitted by the Privacy Act, see

https://www.ftc.gov/siteinformation/

privacypolicy.

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.

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.

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.

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.

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.

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.

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.

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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