Advertising keywords are the carnival barkers of the internet. Their job is to shout, “Me, me, me, me, me!” to people searching online for a product or service. If successful, they’ll get prospective customers to click on the ad or website of whoever paid their fare. A newly announced FTC case is a reminder that if you use keywords to promote your product for uses covered by the Fair Credit Reporting Act (FCRA), it’s time to step right up and pay attention to the FCRA’s consumer protections.
San Diego-based companies Instant Checkmate and TruthFinder, and three related companies, will pay $5.8 million to settle charges they violated the FCRA and the FTC Act in the course of marketing their consumer background reports as a way for prospective employers and landlords to screen applicants.
The companies sell consumer background reports through their Instant Checkmate and TruthFinder websites. The FTC says they assemble and merge information they get from other data brokers. Their reports usually include phone numbers, addresses, relatives, arrest and criminal records, social media profiles, and more. Customers can access the reports by buying monthly subscriptions to the websites.
Where did they go wrong? According to the complaint, the companies bought thousands of advertising keywords from Google and Microsoft to ensure that Instant Checkmate or TruthFinder ads appeared in response to searches related to employment or tenant screening. For example, they bought keywords including “nanny background check,” “pre employment screening,” “best background check for landlords,” and “tenant background check.”
According to the FTC, by providing background reports that they expected would be used to determine eligibility for employment or housing, Instant Checkmate and TruthFinder qualified as “consumer reporting agencies” (CRAs), subject to the FCRA. The complaint alleges they violated the FCRA in multiple ways, including by failing to maintain reasonable procedures to ensure that users of their reports had permissible purposes for accessing them, failing to follow reasonable procedures to assure maximum possible accuracy for their reports, and failing to provide FCRA-mandated “User Notices” outlining important consumer protections.
The complaint also alleges the companies deceptively promoted their reports, including with false claims in ads that a searched-for person had a criminal or arrest record. For example, if someone searched for the name “John Smith” using the search engines Google or Bing, they might get an ad saying, “Check John Smith’s Arrests,” with a link to the Instant Checkmate or TruthFinder website. Similarly, if someone searched for a name on the TruthFinder or Instant Checkmate website before buying a subscription, the site delivered statements like, “The arrest records sections of your report WILL SHOW arrest or conviction records associated with the name [John Smith].” (Their emphasis, not ours.) The FTC says that often, when consumers went on to purchase reports after seeing these ads, they found the reports didn’t contain criminal or arrest records or contained only non-criminal traffic violations.
You’ll want to read the complaint for details of other alleged deceptive practices. For example, the complaint alleges the companies promoted Instant Checkmate and TruthFinder reports as highly accurate but made no effort to verify the information they got from their vendors — who explicitly said they were providing their data as-is and weren’t warranting its accuracy.
Together, the settling companies – Instant Checkmate, TruthFinder, The Control Group Media Company, IntelicareDirect, and PubRec — are subject to a $5.8 million civil penalty. In addition, the proposed settlement establishes a comprehensive FCRA monitoring program, bars the companies from making misrepresentations about their report in the future, including misrepresenting their accuracy and whether they contain criminal or arrest records, prohibits future FCRA violations, and requires the companies to monitor their endorsers.
This is not the first time the FTC has sued Instant Checkmate for violating the FCRA. In 2014, the company paid a $525,000 civil penalty to settle an FTC lawsuit.
What compliance takeaways does the case offer if you don’t want to cross the line into FCRA coverage? In a nutshell, businesses that sell information about consumers, such as background reports, must take reasonable measures to prevent the reports from being used to determine consumers’ eligibility for employment, housing, credit, insurance, or similar benefits. These measures could include, for example:
- Don’t advertise or promote your products for purposes covered by the FCRA, like employee or tenant screening.
- Review all advertising materials, including search engine advertising keywords, to ensure they don’t promote uses covered by the FCRA.
- Require users to certify that they won’t use the business’s products and services for screening employees or tenants, lending money, underwriting insurance, or otherwise weighing eligibility to complete some type of transaction.
- Implement controls to detect and prevent the use of the business’s products and services for FCRA-covered purposes.
If you or your clients provide background reports for employment or tenant screening, find FCRA compliance guidance at What Employment Background Screening Companies Need to Know About the Fair Credit Reporting Act and What Tenant Background Screening Companies Need to Know About the Fair Credit Reporting Act.
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