Fair Credit Reporting Act

The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., governs access to consumer credit report records and promotes accuracy, fairness, and the privacy of personal information assembled by Credit Reporting Agencies (CRAs). A CRA is an entity that assembles and sells credit information and financial information about individuals. While there are three national CRAs in the United States (Experian, Trans Union, and Equifax), private investigators, detective agencies, collection agencies, inspection bureaus, companies that sell information to insurance companies and assist in performing background checks, and college placement offices have been deemed to be CRAs under the law. CRAs compile what are called “consumer reports,” meaning any written, oral, or other communication of any information by a CRA bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living. See § 1681a.

Federal, state, and municipal law enforcement agencies may obtain basic identifying information (name, address, former address, employment) on any consumer through a CRA. See § 1681f. If they want more detailed information provided in a consumer report, however, they generally must seek a court order or subpoena. See § 1681b(a)(1).

The USA PATRIOT Act expanded federal agencies’ access to credit reports. Prior to the Act, the FBI had access to credit reports (without needing a court order or subpoena) if there were specific and articulable facts that gave reason to believe that the consumer was either a foreign power, a foreign official, or the agent of a foreign power and was engaged in international terrorism or criminal clandestine intelligence activities. See 15 U.S.C. 1681u(a), (b). The Act eliminated the requirement of a nexus to a foreign power or its agents and instead requires that the information sought be relevant for various national security investigations “to protect against international terrorism or clandestine intelligence activities.” See § 1681u. The Act also broadened other federal agencies’ access to consumer reports. Section 1681v obligates CRAs to provide consumer information and reports to a federal agency “authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism." Senior federal agency officials are empowered to issue a certification that the information is “necessary for the agency’s conduct or such investigation, activity, or analysis.” See § 1681v (a) & (b). Upon certification that disclosure to the subject would impair national security or interfere with an investigation, the entity providing the information is not permitted to disclose to the subject or others (except counsel and those necessary to comply with the request) that the government agency sought the credit report. See § 1681v (c). State and local law enforcement within fusion centers often work in conjunction with the FBI or other federal officials to seek consumer reports pursuant to either § 1681u or § 1681v authority. If § 1681u or § 1681v  is not utilized or applicable, consumer credit information may be obtained by seeking a court order or subpoena as authorized at §1681b.