Eligibility Information and Member Lists
Is a credit unionÃ¢ÂÂs member list considered eligibility information under the affiliate marketing rule? This question has been asked a few times, and it seems we have an answer.
I recently attended the American Bar Association (ABA) conference in New York and when I wasnÃ¢ÂÂt attending the credit union meetings, I found a couple of CLE programs, one of which I found rather useful. It was entitled Can Privacy and Marketing Coexist? DonÃ¢ÂÂt Ask, DonÃ¢ÂÂt Sell. The program entailed a panel of 4 attorneys Ã¢ÂÂ two from law firms, one from the OCC, and one from the FTC Ã¢ÂÂ who discussed the privacy-oriented rules, including affiliate marketing, and their interplay with marketing efforts. IÃ¢ÂÂm not going to go through the entire two-hour program here but I thought IÃ¢ÂÂd highlight the eligibility information discussion since the question has been asked of the compliance team a few times.
Here goes the analysis:
The rule defines Ã¢ÂÂeligibility informationÃ¢ÂÂ as any information the communication of which would be a consumer report if exclusions from the definition of Ã¢ÂÂconsumer reportÃ¢ÂÂ in section 603(d)(2)(A) of the Fair Credit Reporting Act did not apply. So the rule applies to transaction and experience information as well as consumer report information.
However, it should not entail contact information alone. Pure contact information does not contain any consumer report information. Now, if one could glean consumer report information from the contact list, then it would eligibility information. For instance, a list of your members that have account balances over a certain amount would be eligibility information. But, a list of all of your members would not be (although it is non-public personal information under the Privacy rule).
Regulatory Compliance Counsel