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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

FTC Announces Amended Rule on Identity Theft “Red Flags”

Posted in Congress, Creditors, Data Security, Federal Trade Commission, Financial Institutions, Financial Privacy, Red Flags, United States

On Friday, November 30, the Federal Trade Commission (FTC) issued an Interim Final Rule to amend its Red Flags Rule, which requires certain financial institutions and creditors to establish programs to detect, prevent and mitigate identity theft in connection with consumer accounts.  The Interim Final Rule narrows the definition of “creditor” in response to legislation passed by Congress in December 2010 (as covered in previous blog posts), excluding from the definition most doctors, lawyers, and other professionals who do not receive full payment at the time their service is furnished.  The rule is effective on February 11, 2013, and the FTC is seeking comments on the rule until that time.     

The Interim Final Rule narrows the circumstances under which creditors are covered by the Rule in an attempt to be consistent with Congress’s legislation. The amended Rule now provides that a creditor is covered only if, in the ordinary course of business, it regularly: (1) obtains or uses consumer reports in connection with a credit transaction; (2) furnishes information to consumer reporting agencies in connection with a credit transaction; or (3) advances funds to or on behalf of a person (except for a creditor who advances funds on behalf of the person for expenses incidental to a service provided by the creditor to that person).   

Under the Rule, covered entities’ Red Flag programs must: (1) include reasonable policies and procedures to identify signs – or “red flags” – of identity theft in the day-to-day operations of the business; (2) be designed to detect the red flags of identity theft known to the business; (3) set out the actions the business will take upon detecting red flags; and (4) re-evaluate its program periodically to reflect new risks.