On September 27, 2018, the Federal Trade Commission announced a settlement agreement with four companies – IDmission, LLC, (“IDmission”) mResource LLC (doing business as Loop Works, LLC) (“mResource”), SmartStart Employment Screening, Inc. (“SmartStart”), and VenPath, Inc. (“VenPath”) – over allegations that each company had falsely claimed to have valid certifications under the EU-U.S. Privacy Shield framework. The FTC alleged that SmartStart, VenPath and mResource continued to post statements on their websites about their participation in the Privacy Shield after allowing their certifications to lapse. IDmission had applied for a Privacy Shield certification but never completed the necessary steps to be certified.

In addition, the FTC alleged that both VenPath and SmartStart failed to comply with a provision under the Privacy Shield requiring companies that cease participation in the Privacy Shield framework to affirm to the Department of Commerce that they will continue to apply the Privacy Shield protections to personal information collected while participating in the program.

As part of the proposed settlements with the FTC, each company is prohibited from misrepresenting their participation in any privacy or data security program sponsored by the government or any self-regulatory or standard-setting organization and must comply with FTC reporting requirements. Further, VenPath and SmartStart must either (1) continue to apply the Privacy Shield protections to personal information collected while participating in the Privacy Shield, (2) protect it by another means authorized by the Privacy Shield framework, or (3) return or delete the information within 10 days of the FTC’s order.

“Companies need to know that if they fail to honor their Privacy Shield commitments, or falsely claim participation in the Privacy Shield framework, we will hold them accountable,” said Andrew Smith, director of the FTC’s Bureau of Consumer Protection. “We have now brought enforcement actions against eight companies related to the Privacy Shield, and we will continue to aggressively enforce the Privacy Shield and other cross-border privacy frameworks.”

Update: On November 19, 2018, the Commission voted to give final approval to the settlements with the four companies.