Privacy Protection for Customer Financial Information

Prepared for Members and Committees of Congress

Title V of the Gramm-Leach-Bliley Act of 1999 (GLBA) (P.L. 106-102) covers financial
institutions. It prohibits them from sharing nonpublic personally identifiable customer
information with non-affiliated third parties without providing an opportunity to opt out and
mandates various privacy policy notices. It requires financial institutions to safeguard the security
and confidentiality of customer information. Finally, it delegates rulemaking and enforcement
authority to the federal banking and security regulators, the Federal Trade Commission (FTC),
and state insurance regulators. P.L. 109-351 requires these regulators to devise a model privacy
notice so that consumers may identify and compare information disclosure practices of financial
institutions. P.L. 108-159 makes certain Fair Credit Reporting Act (FCRA) preemptions of state
law relative to information sharing among affiliates permanent and provides a limited opt-out of
affiliate sharing of information for marketing purposes.
It is expected that in the 111th Congress, as in every Congress since 1999, there will be legislative
proposals to enhance the protection offered personal financial information. This report will be
updated to reflect action on major legislation. For information on other relevant data security
issues, including data breach notification, see CRS Report RL33273, Data Security: Federal
Legislative Approaches, by Gina Marie Stevens, and CRS Report RL34120, Federal Information
Security and Data Breach Notification Laws, by Gina Marie Stevens.

Backgr ound ..................................................................................................................................... 1
Gramm-Leach-Bliley’s Privacy Provisions.....................................................................................2
Public and Industry Reaction...........................................................................................................3
The European Union Data Directive...............................................................................................3
Author Contact Information............................................................................................................4

With modern technology’s ability to gather and retain data, financial services businesses have
increasingly found ways to take advantage of their large reservoirs of customer information. Not
only can they serve their customers better by tailoring services and communications to customer
preferences, but they can profit from sharing that information with others willing to pay for
customer lists or targeted marketing compilations. Although some consumers are pleased with the
wider access to information about available services that information sharing among financial
services providers offers, others have raised privacy concerns, particularly with respect to
secondary usage.
The United States has no general law of financial privacy. The U.S. Constitution, itself, has been
held to provide no protection against governmental access to financial information turned over to
third parties. United States v. Miller, 425 U.S. 435 (1976). This means that although the Fourth
Amendment to the United States Constitution requires a search warrant for a law enforcement
agent to obtain a person’s own copies of financial records, it does not protect the same records
when they are held by financial institutions. State constitutions and laws may provide greater
Various federal statutes provide a measure of privacy protection for financial records. The Right
to Financial Privacy Act, 12 U.S.C. §§ 3401-3422, sets procedures for federal government access
to customer financial records held by financial institutions. The Fair Credit Reporting Act
(FCRA), 15 U.S.C. §§ 1681 to 1681t, establishes standards for collection and permissible
purposes for dissemination of data by consumer reporting agencies. It also gives consumers
access to their files and the right to correct information therein. The Electronic Funds Transfer
Act, 15 U.S.C. §§ 1693a to 1693r, describes the rights and liabilities of consumers using
electronic funds transfer systems. Among them is the right to have the financial institution
provide consumers with information as to the circumstances under which information concerning
their accounts will be disclosed to third parties.
With the passage of the Fair Credit Reporting Act Amendments of 1996, P.L. 104-208, Div. A,
Tit. II, Subtitle d, Ch. 1, § 2419, 110 Stat. 3009-452, adding 15 U.S.C.§ 1681t(b)(2), companies
may share with other entities certain customer information respecting their transactions and
experience with a customer without any notification requirements. Other customer information,
such as credit report or application information, may be shared with other companies in the
corporate family if the customers are given “clear and conspicuous” notice about the sharing and
an opportunity to direct that the information not be shared, that is, an “opt out.”
Under section 214 of P.L. 108-159, 117 Stat. 1952, the Fair and Accurate Credit Transactions Act
of 2003 (FACT Act), subject to certain exceptions, affiliated companies may not share customer
information for marketing solicitations unless the consumer is provided clear and conspicuous
notification that the information may be exchanged for such purposes and an opportunity and a
simple method to opt out. Among the exceptions are solicitations based on preexisting business
relationships; based on current employer’s employee benefit plan; in response to a consumer’s
request or authorization; and as required by state unfair discrimination in insurance laws. The
2003 amendments also require the agencies to conduct regular joint studies of information
sharing practices of affiliated companies and make reports to the Congress every three years.

Title V of the Gramm-Leach Bliley Act (GLBA) (P.L. 106-102)1 contains the privacy provisions
enacted in conjunction with financial modernization legislation. The legislation requires that 2
federal regulators issue rules that call for financial institutions to establish standards to insure the 34
security and confidentiality of customer records. It prohibits financial institutions from
disclosing nonpublic personal information to unaffiliated third parties without providing
customers the opportunity to decline to have such information disclosed. Also included are
prohibitions on disclosing customer account numbers to unaffiliated third parties for use in
telemarketing, direct mail marketing, or other marketing through electronic mail. Under this
legislation, financial institutions are required to disclose, initially when a customer relationship is
established and annually, thereafter, their privacy policies, including their policies with respect to
sharing information with affiliates and non-affiliated third parties. Under section 503(c) of
GLBA, as added by section 728 of the Financial Services Relief Act of 2006, P.L. 109-351, the
federal functional regulators are required to propose model forms for GLBA privacy notices. On 5
March 29, 2007, the agencies issued a notice proposing a model form and soliciting comments, 6
which are now under review. Final issuance of the forms could be as early as spring 2009.
Regulations implementing GLBA’s privacy requirements were published by the banking
regulators in the Federal Register on June 1, 2000, by the Federal Trade Commission (FTC) on 7
May 24, and by the SEC on June 29 (65 Fed. Reg. 35162, 33646, and 40334). They became 8
effective on November 13, 2000. Consumers may opt out at any time. Identity theft and pretext 9
calling guidelines were issued to banks on April 6, 2001. Insurance industry compliance has been
handled on a state-by-state basis by the appropriate state authority. The National Association of

1, tit. v, 113 Stat. 1338, 1436. 15 U.S.C. §§
6801 - 6809.
2 GLBA covers the federal banking regulators: the Office of the Comptroller of the Currency (national banks); the
Office of Thrift Supervision (federal savings associations and state-chartered savings associations insured by the
Federal Deposit Insurance Corporation (FDIC)); the Board of Governors of the Federal Reserve System (state-
chartered banks which are members of the Federal Reserve System); FDIC (state-chartered banks which are not
members of the Federal Reserve System, but which have FDIC deposit insurance); and the National Credit Union
Administration (federal and federally-insured credit unions). Also included are the Securities and Exchange
Commission (brokers and dealers, investment companies, and investment advisors). 15 U.S.C. § 6805(a) (1)-(5). For
insurance companies, state insurance regulators are authorized to issue regulations implementing the GLBA privacy
provisions. 15 U.S.C. § 6805(a)(6). For all otherfinancial institutions,” the Federal Trade Commission has authority to
issue rules implementing the privacy provisions of GLBA. 15 U.S.C. § 6805(a)(7).
3 Interagency Guidelines Establishing Standards for Customer Information were published by the federal banking
regulators on February 1, 2001 (66 Fed. Reg. 8616).
4 GLBA covers “financial institutions” within the meaning of the Bank Holding Company Act (BHCA). Controversies
have arisen because businesses involved in activities that are not necessarily performed in traditional financial
institutions may meet this definition. New York State Bar Association v. FTC, 276 F. Supp. 2d 110 (D.D.C. 2003), held
that attorneys are not covered. Section 609 of P.L. 109-351 makes it clear that certified public accountants subject to
confidentiality requirements are also excluded.
5 72 Fed. Reg. 14940.
6 73 Fed. Reg. 71093 (Nov. 24, 208).
7 Federal Register online at
8 See FTC regulations at See FTC regulations at

Insurance Commissioners (NAIC) approved a model law respecting disclosure of consumer 10
financial and health information intended to guide state legislative efforts in the area.
These privacy provisions preempt state law except to the extent that the state law provides greater
protection to consumers. The FTC, in conjunction with the other federal financial institution
regulators, is to make the determination as to whether or not a state law is preempted.

One of the indications of the public’s interest in preserving the confidentiality of personal
information conveyed to financial service providers was the negative reaction to what became an 11
aborted attempt by the federal banking regulators to promulgate “Know Your Customer” rules.
These rules would have imposed precisely detailed requirements on banks and other financial
institutions to establish profiles of expected financial activity and monitor their customers’
transactions against these profiles.
Even before the “Know Your Customer” Rules and enactment of GLBA, depository institutions
and their regulators have increasingly promoted industry self-regulation to instill consumer
confidence and forestall comprehensive privacy regulation by state and federal governments. One
of the federal banking regulators, the Office of Comptroller of the Currency, for example, issued 12
an advisory letter regarding information sharing. To some participants in the financial services
industry, preemptive federal legislation is preferable to having to meet differing privacy standards
in every state. With respect to information sharing among affiliated companies, FCRA, as 13
amended by the FACT Act preempts state law. GLBA, on the other hand, leaves room for more
protective state laws. In Congress, the debate continues as to whether there should be further
limitations on disclosures. For example, whether consumer consent or customer opt-in should be
required before certain sensitive types of information may be disclosed to third parties has been
an issue in each Congress since GLBA was enacted.

Another incentive for a nationwide standard has been the requirements imposed upon companies
doing business in Europe under the European Commission on Data Protection (EU Data
Directive), an official act of the European Parliament and Council, dated October 24, 1995
(95/46/EC). This imposes strict privacy guidelines respecting the sharing of customer information
and barring transfers, even within the same corporate family, outside of Europe, unless the 14
transfer is to a country having privacy laws affording similar protection as does Europe.

11 See CRS Report RS20026, Banking’s Proposed “Know Your Customer” Rules, by M. Maureen Murphy.
12 “Fair Credit Reporting Act,” OCC AL 99-3 (March 29, 1999).
13 See American Bankers Association v. Lockyer, 541 F.3d. 1214 (9th Cir. 2005), on remand, American Bankers
Association v. Lockyer, 2005 WL 2452798 (E,.D. Cal. 2005).
14 For an analysis of some of the differences between the European financial privacy regime and that of the United
States, see Virginia Boyd, Financial Privacy in the United States and the European Union: A Path to Transatlantic
Regulatory Harmonization, 24 Berkeley J. Int’l L. 939 (2006).

M. Maureen Murphy
Legislative Attorney, 7-6971