On July 16, 2002, the United States Court of Appeals for the District of Columbia Circuit affirmed a lower court decision upholding the regulations implementing the Gramm-Leach-Bliley Act (GLBA). Trans Union v. Federal Trade Comm’n, 2002 WL 1526296 (D.C. Cir. July 16, 2002). Trans Union had challenged the regulations as unlawfully prohibiting a credit reporting agency (CRA) from disclosing and reusing certain consumer information. The appellate court found that:

    • The Federal Trade Commission (FTC) permissibly determined that Trans Union, as a provider of credit bureau services, is a “financial institution” subject to the rulemaking authority of the FTC under the GLBA;

    • The FTC permissibly interpreted the term “personally identifiable financial information” to encompass consumer credit report header information such as name, address, telephone number and social security number;

    • The question as to whether the regulations prohibit a CRA from using aggregated information that contains no personally identifiable information is not yet ripe because no determination has been made as to whether aggregation should be considered “use” under the reuse restrictions;

    • The FTC’s interpretation of GLBA as prohibiting a CRA from reusing account numbers for marketing purposes is plausible and consistent with the plain intent of GLBA to more tightly restrict disclosure of account numbers than that of other nonpublic personal information;

    • Trans Union’s arguments that the regulations’ restrictions on disclosure and reuse violate a CRA’s First Amendment right of free speech were foreclosed by the court’s opinion in Trans Union v. Federal Trade Comm’n, 245 F.3d 809 (2001), cert. denied, 122 S. Ct. 2386 (2002) (noting that the regulations, which aim directly at their intended target, have neither indirect nor unintended effects on speech and therefore sweep only as broadly as necessary to accomplish their goal of protecting the privacy of personal financial information).

    For a copy of the opinion or guidance on compliance, please contact Elizabeth Anstaett at (614) 628-1604 or [email protected] or Judith Scheiderer at (614) 628-1607 or [email protected] .