Vicarious liability may be used to state a claim under the FACTA provision prohibiting a retailer from printing a credit card expiration date on a receipt. See Keith v. Back Yard Burgers of Nebraska, Inc., No. 8:11-CV-135 (D. Neb. Apr. 13, 2012). According to the court, only one other unreported decision had addressed a franchisor's vicarious liability under FACTA.
The Blog of Legal Times is reporting that late on December 7, 2010 the House of Representatives passed a bill on a voice vote that amends the definition of "creditor" in the Fair and Accurate Credit Reporting Act (FCRA) and, as a result, dramatically limits the scope of the Red Flags Rule. The House bill is identical to the legislation enacted by the Senate last week. We previously covered in detail on our blog both the House bill and the Senate bill.The legislation has the effect of largely limiting the applicability of the Red Flags Rule to financial institutions and entities commonly understood to be "creditors". It will generally exclude from the Rule's scope organizations whose "credit" activities are limited to providing a product or service and allowing customers to pay for the product or service at a later time. The legislation leaves open the possibility that the FTC would bring various types of creditors within the scope of the Rule through rulemaking. However, it sets a procedural threshold for expanding the scope of the Rule and appears to require the determination to be specific to the type of creditor. "When I think of the word 'creditor,' dentists, accounting firms and law firms do not come to mind," said Rep. John Adler (D-N.J.), speaking on the House floor.
Last week, the U.S. Senate adopted by unanimous consent a bill (S. 3987) that would limit the scope of the Federal Trade Commission's Red Flags Rule by amending the Fair Credit Reporting Act's (FCRA's) definition of "creditor." The Senate bill is identical to the bipartisan House proposal we covered in detail in our blog on November 22, 2010.Both bills have been referred to the House Committee on Financial Services. Given that the House and Senate are now on the same page with respect to the Red Flags Rule, there is a good chance that this proposal will become law before the FTC begins enforcing the Rule on December 31, 2010. The bills seek to largely limit the applicability of the Red Flags Rule to entities commonly understood to be "creditors". They would generally exclude from the Rule's scope organizations whose "credit" activities are limited to providing a product or service and allowing customers to pay for the product or service at a later time.
The Federal Trade Commission's latest delay in enforcing the Identity Theft Red Flags Rule is slated to expire on December 31, 2010. This fifth delay, which the FTC announced on May 28, 2010, was requested by members of Congress, who had been working to respond to the outcry over the FTC's broad interpretation of the Rule. In the latest legislative initiative, on November 17, 2010, representatives Adler (D-NJ), Broun (R-GA) and Simpson (R-IN) advanced a bill (HR 6420) that seeks to limit the scope of the FTC's Red Flags Rule by amending the Fair Credit Reporting Act's (FRCA's) definition of "creditor."
Several news outlets are reporting today on the November 15, 2010 argument before the U.S. Court of Appeals for the D.C. Circuit on the applicability of the Federal Trade Commission's Identity Theft Red Flags Rule.The relevant part of the Rule implements Section 114 of the Fair and Accurate Credit Transactions Act (FACTA) and requires certain creditors to develop and maintain an identity theft prevention program designed to detect, prevent and mitigate fraud attempted or committed through identity theft. The FTC has taken the position that attorneys and law firms are within the scope of the Rule's definition of "creditor" to the extent they allow clients to pay for legal services after the services are preformed. The ABA successfully challenged the applicability of the Rule to attorneys before the D.C. District Court. The FTC appealed that ruling.
As previously reported here, the Federal Trade Commission (FTC) is currently scheduled to commence enforcement of the FACTA Red Flags Rule (72 Fed. Reg. 63,718) on June 1, 2010. On Friday, only 10 days before the deadline, the American Medical Association, the American Osteopathic Association, and the Medical Society for the District of Columbia filed suit against the FTC in the United States District Court for the District of Columbia (AMA v. FTC, D.D.C., No. 1:10-cv-00843), following in the footsteps of similar lawsuits filed in the past year by the American Bar Association (ABA) and the American Institute of Certified Public Accountants (AICPA). The ABA, in a lawsuit filed last August (ABA v. FTC, No. 1:09-cv-01636-RBW), succeeded in obtaining an order (now on appeal) barring the FTC from enforcing the Red Flags Rule against lawyers. (There has been no ruling on the AICPA complaint filed last November.) Following is a discussion of the definitions ("creditor" and "credit") at the heart of the dispute, a summary of the positions taken by the FTC and the AMA with respect to application of the Red Flags Rule to physicians, and a brief review of the court's decision in ABA v. FTC.
As our readers know, the FTC, after four extensions of the deadline, currently intends to begin enforcing the Red Flags Rule with respect to organizations subject to its jurisdiction on June 1, 2010. In the meantime, the Red Flags Rule remains in effect as to all financial institutions and creditors (and has been subject to enforcement by the banking regulators since November 1, 2008). Although a recent decision of the United States District Court for the District of Columbia, ABA v. FTC, brought lawyers outside the scope of the Rule, the Rule remains broad and covers a wide range of entities as "creditors." Creditors subject to the FTC's jurisdiction need to have their written Red Flags Rule Identity Theft Prevention Programs prepared, approved by the Board, and implemented by June 1. For more on the history and the requirements of the Rule, see my recent article, "The FACTA Red Flags Rule: A Primer," published in Bloomberg Law Reports - Risk & Compliance, reproduced here with the permission of Bloomberg.
In the last post, I talked about the role of encryption in fashioning a "reasonable" security plan for sensitive personal information and other protected data routinely collected, stored, and used by an enterprise. But lawmakers and regulators are getting more specific about using encryption and managing data that is risky from an ID-theft perspective. Here are some leading examples of this trend.