The DC Circuit Court of Appeals has ruled against TransUnion, a leading
credit reporting firm. A three-judge panel composed of Edwards, Ginsburg,
and Tatel last Friday said that marketing lists are *not* protected by the
First Amendment.
This lawsuit had little to do with TransUnion's detailed credit reports,
but instead dealt with marketing lists -- names and addresses of people who
meet certain criteria -- in company's "MasterFile," a subset of its much
larger credit reporting database. Direct marketers pay for MasterFile names
that match specifications, such as anyone in a certain area code or zip
code who has a mortgage and a credit card with a $10,000 limit.
The FTC has authority under the 1970 Fair Credit Reporting Act to regulate
credit reporting, and the agency in 1994 decided the MasterFile reports
were credit reports covered by the law that could not be sold for target
marketing purposes. Legal wrangling ensued, with another trip down to the
district court, and TransUnion citing the First Amendment in saying the act
suffers from "serious constitutional questions."
The appeals court described the company's MasterFile products:
>Trans Union's "Master File/Selects" product line, which allows marketers
>to request lists based on any of five categories of information: (1)
>credit limits (e.g., consumers with credit cards with credit limits over
>$10,000), (2) open dates of loans (e.g., consumers who took out loans in
>the last six months), (3) number of tradelines, (4) type of tradeline
>(e.g., auto loan or mortgage), and (5) existence of a tradeline
In its opinion, the court divided its time between discussing whether
MasterFile was covered by the FCRA ("yes") and whether the First Amendment
covered it ("no"). Note the judges believe the First Amendment applies only
to matters of "public concern" -- any obscure hobbyist publication, look
out! (Who needs all those Knight Rider and A-Team websites devoted to
long-dead-no-public-concern '80s shows anyway?) :)
Excerpt:
>Trans Union's First Amendment challenge fares no better. Banning the sale
>of target marketing lists, the company says, amounts to a restriction on
>its speech subject to strict scrutiny. Again, Trans Union misunderstands
>our standard of review... The information about individual con- sumers and
>their credit performance communicated by Trans Union target marketing
>lists is solely of interest to the company and its business customers and
>relates to no matter of public concern. Trans Union target marketing lists
>thus warrant "reduced constitutional protection."
The complete opinion is here:
http://pacer.cadc.uscourts.gov/common/opinions/200104/00-1141a.txt
-Declan
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