Ed's Blog

Court rejects First Amendment attack on credit bureau regulation and other financial follies

By Ed Mierzwinski
Senior Director, Federal Consumer Program

This week, a U.S. District Judge rejected (opinion in Shamara King v. General Information Services) the latest attempt by a credit bureau to challenge the Fair Credit Reporting Act on commercial speech rights grounds. Basically, the credit bureaus have long claimed that what they do should not be regulated. And like many scoundrels, their last refuge is the Constitution.

In the most recent attack, the credit bureau GIS claimed that a recent Supreme Court data privacy decision (SCOTUS summary of Sorrell v. IMS Health) overturning a Vermont law regulating certain marketing of prescription drugs to doctors also means that the FCRA is also unconstitutional. Although the case was a private class action lawsuit, its importance was underscored by a court brief filed jointly on behalf of consumers by the U.S. Department of Justice, the CFPB and the FTC. From the judge's opinion in King:

"Congress’ decision to single out consumer reporting agencies was explicitly based on their unique impact on American commerce and personal privacy. Through a coherent policy that has been justified on such neutral grounds, this Court finds section 1681c [of the FCRA] to sufficiently comport with First Amendment standards."

Expect more credit bureaus to try to misread Sorrell. Fortunately, this first decision is favorable. Without the FCRA, the credit bureaus -- important gatekeepers to consumer financial and employment success -- would run amok even more than they already do.

-- Meanwhile, the CFPB has issued its first annual report and database of current contracts on the relationship between credit card companies and colleges for branded affinity credit cards. These cards can be marketed to undergraduates as well as alumni (previous reports required by the 2009 Credit CARD Act had been filed by the Federal Reserve). The CFPB found that fully 80% of contracts (663 schools) are issued by a Bank of America subsidiary, FIA Services (formerly MBNA Bank), and that, overall, the total number of relationships has declined. The report and database do not consider general marketing of credit cards on campus (for example, at tables in front of the student union), only relationships that include a branded card featuring the college logo or mascot.

-- Over in the Congress, Reps. Edward J. Markey (D-Mass.) and Joe Barton (R-Texas), co-Chairmen of the Congressional Bi-Partisan Privacy Caucus, have released the responses of a number of data brokers to their inquiries as to their data collection and sales practices. From their release:

“The data brokers’ responses offer only a glimpse of the practices of an industry that has operated in the shadows for years,” said the lawmakers in a joint statement. “Many questions about how these data brokers operate have been left unanswered, particularly how they analyze personal information to categorize and rate consumers. This and other practices could affect the lives of nearly all Americans, including children and teens."

-- Finally, over at his New York Times blog, Professor Simon Johnson writes on "The Importance of Elizabeth Warren," our longtime colleague -- first in the bankruptcy and credit card reform wars and most recently the inventor of the CFPB --  who was elected to the U.S. Senate from Massachusetts this week.


Tell your senators to oppose the “Financial CHOICE Act,” which would gut Wall Street reforms and destroy the Consumer Financial Protection Bureau as we know it.

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