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

In an important case joined by the government, a U.S. district judge has rejected the latest misguided industry attack on the constitutionality of regulation of credit bureaus. Meanwhile, the CFPB has released its first annual report on credit card deals with colleges. Here's a weekly summary of the latest financial follies.

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.


Ed Mierzwinski

Senior Director, Federal Consumer Program, PIRG

Ed oversees U.S. PIRG’s federal consumer program, helping to lead national efforts to improve consumer credit reporting laws, identity theft protections, product safety regulations and more. Ed is co-founder and continuing leader of the coalition, Americans For Financial Reform, which fought for the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, including as its centerpiece the Consumer Financial Protection Bureau. He was awarded the Consumer Federation of America's Esther Peterson Consumer Service Award in 2006, Privacy International's Brandeis Award in 2003, and numerous annual "Top Lobbyist" awards from The Hill and other outlets. Ed lives in Virginia, and on weekends he enjoys biking with friends on the many local bicycle trails.

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