Selling Consumers Not Lists: The New World of Digital Decision-Making and the Role of the Fair Credit Reporting Act

This Article explores the new world of financial decision-making, which draws on a range of Internet techniques. While some practices are regulated as traditional credit reports under the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681–1681x, credit bureaus and other financial firms are expanding into currently unregulated areas, including online marketing and sales. Does the FCRA need to be updated to address the growing use of real-time database scoring and decision-making on the Internet? Where is the line drawn between when an online, real-time decision-making score is used simply to serve as advertising for a financial product or to make a decision about establishing a consumer’s eligibility for credit? When companies use a consumer’s online profile for establishing his or her eligibility for credit, does it become a consumer report? As financial firms use powerful digital tools to precisely identify and market to potential customers in real time, are they compiling prescreened lists actionable under the FCRA?