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A consumer reporting agency's credit report warrants reduced constitutional protection where it concerns no public issue. The protection to be accorded a particular credit report, depends on whether the report's "content, form, and context" indicate that it concerns a public matter.
Petitioner Trans Union sells two types of products. First, as a credit reporting agency, it compiles credit reports about individual consumers from credit information it collects from banks, credit card companies, and other lenders. It then sells these credit reports to lenders, employers, and insurance companies. Trans Union receives credit information from lenders in the form of "tradelines." A tradeline typically includes a customer's name, address, date of birth, telephone number, Social Security number, account type, opening date of account, credit limit, account status, and payment history. Trans Union receives 1.4 to 1.6 billion records per month. The company's credit database contains information on 190 million adults. The respondent, Federal Trade Commission, determined that these lists were "consumer reports" under the Fair Credit Reporting Act, 15 U.S.C.S. §§ 1681, 1681a-1681u, and thus could no longer be sold for target marketing purposes. Challenging this determination, Trans Union argued that the Commission's decision was unsupported by substantial evidence and that the Act itself was unconstitutional.
Did the ban on the sale of target marketing lists amount to a restriction on Trans Union’s speech?
The court of appeals denied the petition for review upon finding both arguments to be without merit. Specifically, the court reasoned that substantial evidence supported the agency's finding where Trans Union did not challenge the Commission's interpretation of the FCRA and cited no testimony refuting the Commission's finding that the information in its target marketing lists is used in prescreening. Further, the court held the FCRA was neither unconstitutionally vague nor a violation of free speech. The information about individual consumers and their credit performance communicated by Trans Union target marketing lists is solely of interest to the company and its business customers and relates to no matter of public concern. Trans Union target marketing lists thus warrant "reduced constitutional protection."