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Though Regulation F has been in effect for nearly 18 months, debt collectors continue to discuss exactly how the safe harbors apply, and the safest way to communicate with consumers via email. In this week’s newsletter we’ll recap email safe harbors and their application.

First the basics: when speaking about emailing consumers, the “safe harbor” applies to third party disclosures. Reg F does not say that email can only be used in certain circumstances, nor does it say these criteria must be met prior to emailing. It only says that if a debt collector follows these procedures, it will be safe from regulatory scrutiny regarding whether information was improperly disclosed to a third party. 

Specifically, Reg F provides a safe harbor for Debt collection agencies to email consumers when:

• A consumer contacts the debt collector using the email address and hasn’t opted out of communications to that email address;

• the debt collector received prior consent from the consumer to communicate with them using a particular email address;

What about using an email address the original creditor provides to the debt collector? Well, the CFPB has a safe harbor for that too, but the original creditor has some responsibility:

• The creditor has to have obtained the email address from the consumer;

• The creditor used the email address to communicate with the consumer and the consumer has not opted out of communication to that email address;

• AND…before the debt collector communicates with the consumer using that email address the creditor must send the consumer a written or electronic notice that notifies the consumer

• Their debt is being transferred to a debt collector;

• That the email address the consumer provided may be used by the debt collector to communicate with the consumer about the debt;

• That if others have access to that email address then it is possible they may see the emails;

• Instructions for a reasonable and simple method to opt out of communications to that email address;

• The date the opt out from the consumer must be received, at least 35 days after the notice has been sent. (Note: It doesn’t state “who” is required to manage the opt-out process. This can be done by either the client or the collection agency or law firm)

Reg F also requires that the consumer’s email address be from a public domain and not provided by the consumer’s employer.

Make sure you have a clear and simple way for consumers to opt out and that you are auditing your email communications in the same way you audit your telephone communications. Email is a great tool for communication with consumers and with the safe harbor provided by the CFPB, there really isn’t any reason for debt collectors to not be using it.

Documents and Crowdsourced Materials:

• Member Questions: Email/Text Message Opt Outs and FTC Safeguards

 Top Reads:

• Sending Docs After the Validation Period Expires? One Court Says, No

• An Email is Less Intrusive Than a Phone Call, Finds N.D. Illinois While Granting TrueAccord’s Motion to Dismiss

• DFPI Adopts CRC’s Proposed Language; Removes Personal Liability From Proposal

• Utah’s H.B. 20 Signed into Law, Reducing Red Tape for Debt Collection Agencies

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