FTC Joins Department of Justice and CFPC in Filing Brief Supporting the Constitutionality of the FCRA

The Federal Trade Commission has joined the Department of Justice and the Consumer Financial Protection Bureau in filing a memorandum brief in support of the constitutionality of the Fair Credit Reporting Act (FCRA), the 1970 law that is designed to protect the privacy of credit report information and ensure that the information supplied by consumer reporting agencies (CRAs) is as accurate as possible.

In the filing, the CRAs urge a federal district court to uphold an important provision of the FCRA, which has protected consumers’ privacy for more than 40 years.

The brief was filed in the case of Shamara T. King vs. General Information Services, Inc. (GIS). It specifically addresses a provision of the FCRA that balances the Act’s dual purposes – to protect consumers from privacy invasions caused by the disclosure of sensitive information by CRAs and to ensure a sufficient flow of information to allow the CRAs to fulfill their vital role. The provision in question bars CRAs, in most cases, from disclosing individuals’ arrest records or other adverse information that is more than seven years old.

The brief refutes GIS’s argument that this FCRA protection is an unconstitutional restriction of free speech. The brief points out that the recent U.S. Supreme Court case GIS cites to support its argument, Sorrell v. IMS Health Inc., “does not change the settled First Amendment standards that apply to commercial speech, nor does it suggest that restrictions on the dissemination of data for commercial purposes [such as those by CRAs] must satisfy stricter standards.” Therefore, the brief concludes, the court should not invalidate the FCRA provision, as it “directly advances the government’s substantial interest in protecting individuals’ privacy,” while also accommodating the interest of businesses.

The Commission vote authorizing the FTC to join in filing the brief was 5-0.