In the 21st century digital economy, consumers expect and demand a digital experience for the products and services they consume in the marketplace. To meet consumers’ needs and preferences, lenders are seeking out new innovative products that help deliver relevant credit offers across digital channels, whether via text, email, or social media. As the industry moves forward to provide these opportunities, recent news reports about privacy disclosures and data security have raised questions about the legal frameworks governing the delivery of credit offers in the digital space. These slides feature content presented by Venable LLP’s eCommerce, Privacy, and Cybersecurity Practice Group on the regulatory environment surrounding credit marketing in the digital age. Venable practitioners review how the Fair Credit Reporting Act, Gramm Leach Bliley Act, and other laws apply in today’s world, including for credit offers made via text, email and social channels. It also reveals some common best practices that align with the expectations of the Federal Trade Commission.

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Credit Marketing in the Digital Age
Making Sense of the Regulatory Landscape
June 7, 2018
Stuart Ingis
Tara Sugiyama Potashnik
Ariel Wolf
Tony Hadley

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Objectives
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1 Discuss issues driving policy and legal developments
Review today’s regulatory landscape
Apply to digital credit marketing channels
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3. Introductions
Stuart Ingis (Venable)
Tara Sugiyama
Potashnik (Venable)
© 2018 Venable LLP
Tony Hadley (Experian)
Ariel Wolf (Venable)

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Issues Driving Policy Developments
Data breach, social media privacy, credit access and inclusion
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Recent Headlines
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E-Privacy
GLBA
CAN-SPAM
COPPA
Dodd-Frank & FTC
Reauthorization
OBA
Hearings &
Workshops
– Self-Reg
Russia
Political Ads
1998 1999 2003 2009 2010 2016 - 2017 - 2018
California
Ballot
Initiative
GDPR
Cambridge
Analytica
Major
Retailor
Breaches
2013
Fake News
Election
Hacking
State AG
MD & CT
Political Ads
Mid-Terms
Net Neutrality
CRA
FTC??
IL – Right to Know
VT – Data BrokerMalware & Nat Def
Focus on Privacy
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 Major data breaches
 High profile privacy incidents
 Credit access and inclusion
 Financial practices and regulatory reform
 Internet governance and regulation
 Cybersecurity standards
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Congressional Focus

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 Federal Trade Commission
• Marketing and advertising practices
• Data security practices
• Privacy practices with emerging technology
 Consumer Financial Protection Bureau
• Supervision and examination of FIs and
credit bureaus
• Credit and financial services practices
harmful to consumers
 Federal Communications Commission
• Robocalls
• ISP behavior
Agency Focus
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Today’s Regulatory Landscape
FCRA, GLBA, TCPA, CAN-SPAM, E-SIGN, State Law, Self-Regulation
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Regulation of the Credit
Marketplace
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Who Is in Charge?
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 Sets standards for collection and use of
credit-related information
 Governs credit bureaus, furnishers, and users
 “Permissible purpose” required (includes
prescreened offers of credit)
 State credit reporting laws complement FCRA
Fair Credit Reporting Act
(FCRA) and Regulation V
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 Governs use and disclosure of customer nonpublic
information (NPI)
 Financial institutions (FIs) must provide notice of
privacy practices
 FIs must allow customers to opt out of disclosure of
customer’s NPI to nonaffiliated third party
 No opt-out needed if sharing with service provider
for marketing purposes but must give notice and
limit use of data by contract
 Data security regulations
Gramm-Leach-Bliley Act
(GLBA)
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 Marketers must obtain prior written express consent before
making telemarketing calls or texts to a cellphone from an auto-
dialer
 Must provide an automated interactive opt-out mechanism with
each robotext so consumers can immediately stop further texts
 Consumers may generally opt-out of telemarketing calls and
texts through the FTC’s Do Not Call Registry
 Additional elements under the Telemarketing Sales Rules if
applicable
Telephone Consumer
Protection Act (TCPA)
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 Governs commercial email
 Establishes content requirements and grants
opt-out rights
 Opt-out requests must be honored promptly and
without conditions
 Requires monitoring email vendors for
compliance
CAN-SPAM Act
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Electronic Signatures in Global and
National Commerce Act
(E-Sign Act)
 Permits electronic records to satisfy
legal requirements for written consent,
and allows required disclosures and
notices be delivered electronically
 Consumer consent required prior to
providing required disclosures and
notices be delivered electronically
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 FTC enforces UDAP violations in the marketplace
» Required disclosures must be “clear and
conspicuous”
» FTC’s .Com Disclosure Guide
 States UDAP laws enforced by attorneys general
 CFPB also enforces UDAAP law (extra “A” for
“abusive”)
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Unfair and Deceptive Acts
or Practices (UDAP)

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 Self-regulatory program for online
interest-based advertising
 Provides accountability for the collection
and use of data collected online and
through mobile devices
 Data use restricted for credit-related and
eligibility purposes
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Digital Advertising

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Credit Marketing Through
Digital Media Channels
Email and Digital Display Prospecting, Text-based Credit Application, Form Fill
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New Marketing
Channels, Same Laws
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 Offers made to prescreened list of
consumers based on selected criteria
 Governed by FCRA
 Traditional delivery: Mail piece
 If delivering by phone, must follow
telemarketing rules
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Prescreened Offers (Firm Offers of Credit):
Traditional

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 FCRA prescreened rules still apply –
include disclosures
 BUT ALSO: CAN-SPAM rules
triggered – must scrub the file against
opt-out lists and include opt-out
language in email
 Focus on delivery – offer must reach
specific consumer
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Prescreened Offers:
Email

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 FCRA elements remain:
1. Ensure delivery to specific consumer on prescreen list
2. FCRA disclosures needed on collateral
 Important to have processes to fulfill both
» Delivery:
• Can depend on whether follow up or initial campaign
• Technology helps identify and authenticate consumers
» Disclosures – landing page after click through
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Prescreened Offers:
Digital Display

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Invitations to Apply Via Text
 TCPA opt-outs must be provided
 Leads to digital- or mobile-based
application
 Disclosures must not be deceptive and
follow “clear and conspicuous”
rules/FTC’s .Com Disclosure Guide
Form Fill
 GLBA data flow and privacy compliance
with consent and exceptions
 Use of data – understand nexus with
FCRA
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Other Credit Marketing Channels

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Email
Prescreen
• FCRA
• GLBA
• CAN-SPAM
• UDAP
Digital Display
Prescreen
• FCRA
• GLBA
• UDAP
• Self-Reg
Text ITA
• FCRA
• TCPA
• UDAP
Form Fill
• GLBA
• UDAP
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Summary: Digital Marketing
Considerations

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 Trusted and reputable vendor is key to
ensuring compliance
 Best practices include:
» Transparency
» Choice
» Data security
» Monitoring
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Wrap-Up

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Contact:
Stuart Ingis | Venable LLP
Singis@Venable.com
202-344-4613
Tara Sugiyama Potashnik | Venable LLP
TSPotashnik@Venable.com
202-344-4363
Ariel Wolf | Venable LLP
ASWolf@Venable.com
202-344-4464
© 2018 Venable LLP
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© 2018 Venable LLP. This informational piece is
published by the law firm Venable LLP. It is not
intended to provide legal advice or opinion. Such
advice may only be given when related to specific
fact situations that Venable has accepted an
engagement as counsel to address.
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