The Consumer Financial Protection Bureau and the Office of the Solicitor General have filed an amicus brief with the Supreme Court in connection with a case pending review. The case, Spokeo, Inc. v. Thomas Robins (found here), deals with the Fair Credit Reporting Act. The brief provides a small window into the bureau’s interpretation of this statute.
FCRA, as the name suggests, broadly governs the collection, assembly and use of consumer report information, and provides the framework for the credit reporting system. Under the Dodd-Frank Act, the authority to publish FCRA rules, regulations and guidelines transferred from the Federal Trade Commission to the CFPB. The FTC then formally rescinded its existing published guidance interpreting the statute. The bureau has yet to issue any interpretive guidance or regulations of any kind.
Spokeo operates a website that provides users with information about individuals, varying from address and phone number to details like “economic health” and online purchases, which Spokeo collects from various public sources. It markets its services to employers evaluating possible hires. Robins alleges that it displayed information about him that inaccurately reported his age, wealth, employment, marital status and education, all of which he claims harmed his employment prospects. Robins alleges an FCRA violation because the information published about him qualified as a “consumer report” under the statute, and Spokeo is a “consumer reporting agency” that failed to follow the statute’s disclosure requirements.
The district court dismissed Robins’ complaint, ruling that Robins had failed to show a specific injury and therefore lacked standing. The Ninth Circuit Court of Appeals reversed that decision, holding that an FCRA violation is itself sufficient to establish standing. Spokeo has asked the Supreme Court to review the case and hold that specific, tangible injury be the basis for standing in FCRA cases.
The amicus brief filed by the CFPB and the Solicitor General recommends that the Court deny certiorari. It argues that FCRA clearly grants individual consumers a statutory entitlement to be free from a credit reporting agency’s dissemination of inaccurate personal information when the agency fails to employ reasonable procedures to ensure accuracy. As far as the CFPB is concerned, disseminating inaccurate information is itself a tangible harm under the FCRA.
Absent any published rules, various businesses are left to infer the CFPB’s position on important matters. Here, it seems clear that the CFPB considers an entity like Spokeo to be a “credit reporting agency,” that information like that provided by Spokeo is in effect a “consumer report,” and that any violation of FCRA creates a civil cause of action. It remains to be seen if that principle applies to other statues enforced by the CFPB.