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Extract of the United States Code, Title 15.
15 USC Sec. 80a-3 01/22/02
TITLE 15 - COMMERCE AND TRADE
CHAPTER 2D - INVESTMENT COMPANIES AND ADVISERS
SUBCHAPTER I - INVESTMENT COMPANIES
Sec. 80a-3. Definition of investment company
(a) Definitions
(1) When used in this subchapter, ''investment company'' means any issuer which -
(A) is or holds itself out as being engaged primarily, or proposes to engage primarily, in the business of investing, reinvesting, or trading in securities;
(B) is engaged or proposes to engage in the business of issuing face-amount certificates of the installment type, or has been engaged in such business and has any such certificate outstanding; or
(C) is engaged or proposes to engage in the business of investing, reinvesting, owning, holding, or trading in securities, and owns or proposes to acquire investment securities having a value exceeding 40 per centum of the value of such issuer's total assets (exclusive of Government securities and cash items) on an unconsolidated basis.(2) As used in this section, ''investment securities'' includes all securities except
(A) Government securities,
(B) securities issued by employees' securities companies, and
(C) securities issued by majority-owned subsidiaries of the owner which(i) are not investment companies, and
(ii) are not relying on the exception from the definition of investment company in paragraph (1) or (7) of subsection (c) of this section.
(b) Exemption from provisions
Notwithstanding paragraph (1)(C) of subsection (a) of this section, none of the
following persons is an investment company within the meaning of this
subchapter:
(1) Any issuer primarily engaged, directly or through a wholly-owned subsidiary or subsidiaries, in a business or businesses other than that of investing, reinvesting, owning, holding, or trading in securities.
(2) Any issuer which the Commission, upon application by such issuer, finds and by order declares to be primarily engaged in a business or businesses other than that of investing, reinvesting, owning, holding, or trading in securities either directly or(A) through majority-owned subsidiaries or
(B) through controlled companies conducting similar types of businesses. The filing of an application under this paragraph in good faith by an issuer other than a registered investment company shall exempt the applicant for a period of sixty days from all provisions of this subchapter applicable to investment companies as such. For cause shown, the Commission by order may extend such period of exemption for an additional period or periods. Whenever the Commission, upon its own motion or upon application, finds that the circumstances which gave rise to the issuance of an order granting an application under this paragraph no longer exist, the Commission shall by order revoke such order.(3) Any issuer all the outstanding securities of which (other than short-term paper and directors' qualifying shares) are directly or indirectly owned by a company excepted from the definition of investment company by paragraph (1) or (2) of this subsection.
(c) Further exemptions Notwithstanding subsection (a) of this section, none of the following persons is an investment company within the meaning of this subchapter:
(1) Any issuer whose outstanding securities (other than short-term paper) are beneficially owned by not more than one hundred persons and which is not making and does not presently propose to make a public offering of its securities. Such issuer shall be deemed to be an investment company for purposes of the limitations set forth in subparagraphs (A)(i) and (B)(i) of section 80a-12(d)(1) of this title governing the purchase or other acquisition by such issuer of any security issued by any registered investment company and the sale of any security issued by any registered open-end investment company to any such issuer. For purposes of this paragraph:
(A) Beneficial ownership by a company shall be deemed to be beneficial ownership by one person, except that, if the company owns 10 per centum or more of the outstanding voting securities of the issuer, and is or, but for the exception provided for in this paragraph or paragraph (7), would be an investment company, the beneficial ownership shall be deemed to be that of the holders of such company's outstanding securities (other than short-term paper).
(B) Beneficial ownership by any person who acquires securities or interests in securities of an issuer described in the first sentence of this paragraph shall be deemed to be beneficial ownership by the person from whom such transfer was made, pursuant to such rules and regulations as the Commission shall prescribe as necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of this subchapter, where the transfer was caused by legal separation, divorce, death, or other involuntary event.(2)
(A) Any person primarily engaged in the business of underwriting and distributing securities issued by other persons, selling securities to customers, acting as broker, and acting as market intermediary, or any one or more of such activities, whose gross income normally is derived principally from such business and related activities.
(B) For purposes of this paragraph -(i) the term ''market intermediary'' means any person that regularly holds itself out as being willing contemporaneously to engage in, and that is regularly engaged in, the business of entering into transactions on both sides of the market for a financial contract or one or more such financial contracts; and
(ii) the term ''financial contract'' means any arrangement that -(I) takes the form of an individually negotiated contract, agreement, or option to buy, sell, lend, swap, or repurchase, or other similar individually negotiated transaction commonly entered into by participants in the financial markets;
(II) is in respect of securities, commodities, currencies, interest or other rates, other measures of value, or any other financial or economic interest similar in purpose or function to any of the foregoing; and
(III) is entered into in response to a request from a counter party for a quotation, or is otherwise entered into and structured to accommodate the objectives of the counter party to such arrangement.(3) Any bank or insurance company; any savings and loan association, building and loan association, cooperative bank, homestead association, or similar institution, or any receiver, conservator, liquidator, liquidating agent, or similar official or person thereof or therefor; or any common trust fund or similar fund maintained by a bank exclusively for the collective investment and reinvestment of moneys contributed thereto by the bank in its capacity as a trustee, executor, administrator, or guardian, if -
(A) such fund is employed by the bank solely as an aid to the administration of trusts, estates, or other accounts created and maintained for a fiduciary purpose;
(B) except in connection with the ordinary advertising of the bank's fiduciary services, interests in such fund are not-(i) advertised; or
(ii) offered for sale to the general public; and(C) fees and expenses charged by such fund are not in contravention of fiduciary principles established under applicable Federal or State law.
(4) Any person substantially all of whose business is confined to making small loans, industrial banking, or similar businesses.
(5) Any person who is not engaged in the business of issuing redeemable securities, face-amount certificates of the installment type or periodic payment plan certificates, and who is primarily engaged in one or more of the following businesses:(A) Purchasing or otherwise acquiring notes, drafts, acceptances, open accounts receivable, and other obligations representing part or all of the sales price of merchandise, insurance, and services;
(B) making loans to manufacturers, wholesalers, and retailers of, and to prospective purchasers of, specified merchandise, insurance, and services; and
(C) purchasing or otherwise acquiring mortgages and other liens on and interests in real estate.(6) Any company primarily engaged, directly or through majority-owned subsidiaries, in one or more of the businesses described in paragraphs (3), (4), and (5) of this subsection, or in one or more of such businesses (from which not less than 25 per centum of such company's gross income during its last fiscal year was derived) together with an additional business or businesses other than investing, reinvesting, owning, holding, or trading in securities.
(7)
(A) Any issuer, the outstanding securities of which are owned exclusively by persons who, at the time of acquisition of such securities, are qualified purchasers, and which is not making and does not at that time propose to make a public offering of such securities. Securities that are owned by persons who received the securities from a qualified purchaser as a gift or bequest, or in a case in which the transfer was caused by legal separation, divorce, death, or other involuntary event, shall be deemed to be owned by a qualified purchaser, subject to such rules, regulations, and orders as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.
(B) Notwithstanding subparagraph (A), an issuer is within the exception provided by this paragraph if -(i) in addition to qualified purchasers, outstanding securities of that issuer are beneficially owned by not more than 100 persons who are not qualified purchasers, if -
(I) such persons acquired any portion of the securities of such issuer on or before September 1, 1996; and
(II) at the time at which such persons initially acquired the securities of such issuer, the issuer was excepted by paragraph (1); and(ii) prior to availing itself of the exception provided by this paragraph -
(I) such issuer has disclosed to each beneficial owner, as determined under paragraph (1), that future investors will be limited to qualified purchasers, and that ownership in such issuer is no longer limited to not more than 100 persons; and
(II) concurrently with or after such disclosure, such issuer has provided each beneficial owner, as determined under paragraph (1), with a reasonable opportunity to redeem any part or all of their interests in the issuer, notwithstanding any agreement to the contrary between the issuer and such persons, for that person's proportionate share of the issuer's net assets.(C) Each person that elects to redeem under subparagraph (B)(ii)(II) shall receive an amount in cash equal to that person's proportionate share of the issuer's net assets, unless the issuer elects to provide such person with the option of receiving, and such person agrees to receive, all or a portion of such person's share in assets of the issuer. If the issuer elects to provide such persons with such an opportunity, disclosure concerning such opportunity shall be made in the disclosure required by subparagraph (B)(ii)(I).
(D) An issuer that is excepted under this paragraph shall nonetheless be deemed to be an investment company for purposes of the limitations set forth in subparagraphs (A)(i) and (B)(i) of section 80a-12(d)(1) of this title relating to the purchase or other acquisition by such issuer of any security issued by any registered investment company and the sale of any security issued by any registered open-end investment company to any such issuer.
(E) For purposes of determining compliance with this paragraph and paragraph (1), an issuer that is otherwise excepted under this paragraph and an issuer that is otherwise excepted under paragraph (1) shall not be treated by the Commission as being a single issuer for purposes of determining whether the outstanding securities of the issuer excepted under paragraph (1) are beneficially owned by not more than 100 persons or whether the outstanding securities of the issuer excepted under this paragraph are owned by persons that are not qualified purchasers. Nothing in this subparagraph shall be construed to establish that a person is a bona fide qualified purchaser for purposes of this paragraph or a bona fide beneficial owner for purposes of paragraph (1).(8) Any company subject to regulation under the Public Utility Holding Company Act of 1935 (15 U.S.C. 79 et seq.).
(9) Any person substantially all of whose business consists of owning or holding oil, gas, or other mineral royalties or leases, or fractional interests therein, or certificates of interest or participation in or investment contracts relative to such royalties, leases, or fractional interests.(10)
(A) Any company organized and operated exclusively for religious, educational, benevolent, fraternal, charitable, or reformatory purposes -
(i) no part of the net earnings of which inures to the benefit of any private shareholder or individual; or
(ii) which is or maintains a fund described in subparagraph (B).(B) For the purposes of subparagraph (A)(ii), a fund is described in this subparagraph if such fund is a pooled income fund, collective trust fund, collective investment fund, or similar fund maintained by a charitable organization exclusively for the collective investment and reinvestment of one or more of the following:
(i) assets of the general endowment fund or other funds of one or more charitable organizations;
(ii) assets of a pooled income fund;
(iii) assets contributed to a charitable organization in exchange for the issuance of charitable gift annuities;
(iv) assets of a charitable remainder trust or of any other trust, the remainder interests of which are irrevocably dedicated to any charitable organization;
(v) assets of a charitable lead trust;
(vi) assets of a trust, the remainder interests of which are revocably dedicated to or for the benefit of 1 or more charitable organizations, if the ability to revoke the dedication is limited to circumstances involving -(I) an adverse change in the financial circumstances of a settlor or an income beneficiary of the trust;
(II) a change in the identity of the charitable organization or organizations having the remainder interest, provided that the new beneficiary is also a charitable organization; or
(III) both the changes described in subclauses (I) and (II);(vii) assets of a trust not described in clauses (i) through (v), the remainder interests of which are revocably dedicated to a charitable organization, subject to subparagraph (C); or
(viii) such assets as the Commission may prescribe by rule, regulation, or order in accordance with section 80a-6(c) of this title.(C) A fund that contains assets described in clause (vii) of subparagraph (B) shall be excluded from the definition of an investment company for a period of 3 years after December 8, 1995, but only if -
(i) such assets were contributed before the date which is 60 days after December 8, 1995; and
(ii) such assets are commingled in the fund with assets described in one or more of clauses (i) through (vi) and (viii) of subparagraph (B).(D) For purposes of this paragraph -
(i) a trust or fund is ''maintained'' by a charitable organization if the organization serves as a trustee or administrator of the trust or fund or has the power to remove the trustees or administrators of the trust or fund and to designate new trustees or administrators;
(ii) the term ''pooled income fund'' has the same meaning as in section 642(c)(5) of title 26;
(iii) the term ''charitable organization'' means an organization described in paragraphs (1) through (5) of section 170(c) or section 501(c)(3) of title 26;
(iv) the term ''charitable lead trust'' means a trust described in section 170(f)(2)(B), 2055(e)(2)(B), or 2522(c)(2)(B) of title 26;
(v) the term ''charitable remainder trust'' means a charitable remainder annuity trust or a charitable remainder unitrust, as those terms are defined in section 664(d) of title 26; and
(vi) the term ''charitable gift annuity'' means an annuity issued by a charitable organization that is described in section 501(m)(5) of title 26.(11) Any employee's stock bonus, pension, or profit-sharing trust which meets the requirements for qualification under section 401 of title 26; or any governmental plan described in section 77c(a)(2)(C) of this title; or any collective trust fund maintained by a bank consisting solely of assets of such trusts or governmental plans, or both; or any separate account the assets of which are derived solely from
(A) contributions under pension or profit-sharing plans which meet the requirements of section 401 of title 26 or the requirements for deduction of the employer's contribution under section 404(a)(2) of title 26,
(B) contributions under governmental plans in connection with which interests, participations, or securities are exempted from the registration provisions of section 77e of this title by section 77c(a)(2)(C) of this title, and
(C) advances made by an insurance company in connection with the operation of such separate account.(12) Any voting trust the assets of which consist exclusively of securities of a single issuer which is not an investment company.
(13) Any security holders' protective committee or similar issuer having outstanding and issuing no securities other than certificates of deposit and short-term paper.
(14) Any church plan described in section 414(e) of title 26, if, under any such plan, no part of the assets may be used for, or diverted to, purposes other than the exclusive benefit of plan participants or beneficiaries, or any company or account that is-(A) established by a person that is eligible to establish and maintain such a plan under section 414(e) of title 26; and
(B) substantially all of the activities of which consist of -(i) managing or holding assets contributed to such church plans or other assets which are permitted to be commingled with the assets of church plans under title 26; or
(ii) administering or providing benefits pursuant to church plans.
misc administrative details omitted
PROTECTION OF CHURCH EMPLOYEE BENEFIT PLANS UNDER STATE LAW
Section 508(f) of Pub. L. 104-290 provided that:
''(1) Registration requirements. - Any security issued by or any interest or participation in any church plan, company, or account that is excluded from the definition of an investment company under section 3(c)(14) of the Investment Company Act of 1940 (15 U.S.C. 80a-3(c)(14)), as added by subsection (a) of this section, and any offer, sale, or purchase thereof, shall be exempt from any law of a State that requires registration or qualification of securities.
''(2) Treatment of church plans. - No church plan described in section 414(e) of the Internal Revenue Code of 1986 (26 U.S.C. 414(e)), no person or entity eligible to establish and maintain such a plan under the Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.), no company or account that is excluded from the definition of an investment company under section 3(c)(14) of the Investment Company Act of 1940 (15 U.S.C. 80a-3(c)(14)), as added by subsection (a) of this section, and no trustee, director, officer, or employee of or volunteer for any such plan, person, entity, company, or account shall be required to qualify, register, or be subject to regulation as an investment company or as a broker, dealer, investment adviser, or agent under the laws of any State solely because such plan, person, entity, company, or account buys, holds, sells, or trades in securities for its own account or in its capacity as a trustee or administrator of or otherwise on behalf of, or for the account of, or provides investment advice to, for, or on behalf of, any such plan, person, or entity or any company or account that is excluded from the definition of an investment company under section 3(c)(14) of the Investment Company Act of 1940, as added by subsection (a) of this section.''
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 77c, 77z-2, 78c, 78l, 78u-5, 80a-2,
80a-3a, 80a-6, 80a-7, 80a-29, 80a-58, 80a-62, 80a-64, 80b-3, 80b-5, 6102, 6827
of this title;
title 12 section 1843;
title 26 sections 851, 6049.
15 USC Sec. 1681 01/22/02
TITLE 15 - COMMERCE AND TRADE
CHAPTER 41 - CONSUMER CREDIT PROTECTION
SUBCHAPTER III - CREDIT REPORTING AGENCIES
Sec. 1681. Congressional findings and statement of purpose
(a) Accuracy and fairness of credit reporting
The Congress makes the following findings:
(1) The banking system is dependent upon fair and accurate credit reporting. Inaccurate credit reports directly impair the efficiency of the banking system, and unfair credit reporting methods undermine the public confidence which is essential to the continued functioning of the banking system.
(2) An elaborate mechanism has been developed for investigating and evaluating the credit worthiness, (FOOTNOTE 1) credit standing, credit capacity, character, and general reputation of consumers.
(FOOTNOTE 1) So in original. Probably should be ''creditworthiness,''.
(3) Consumer reporting agencies have assumed a vital role in assembling and evaluating consumer credit and other information on consumers.
(4) There is a need to insure that consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer's right to privacy.
(b) Reasonable procedures
It is the purpose of this subchapter to require that consumer reporting agencies
adopt reasonable procedures for meeting the needs of commerce for consumer
credit, personnel, insurance, and other information in a manner which is fair
and equitable to the consumer, with regard to the confidentiality, accuracy,
relevancy, and proper utilization of such information in accordance with the
requirements of this subchapter.
-SOURCE-
(Pub. L. 90-321, title VI, Sec. 602, as added Pub. L. 91-508, title VI, Sec.
601, Oct. 26, 1970, 84 Stat. 1128.)
EFFECTIVE DATE
Section 504(d) of Pub. L. 90-321, as added by Pub. L. 91-508, title VI, Sec.
602, Oct. 26, 1970, 84 Stat. 1136, provided that: ''Title VI (enacting this
subchapter) takes effect upon the expiration of one hundred and eighty days
following the date of its enactment (Oct. 26, 1970).''
SHORT TITLE
This subchapter known as the ''Fair Credit Reporting Act'', see Short Title note
set out under section 1601 of this title.
15 USC Sec. 1681a 01/22/02
TITLE 15 - COMMERCE AND TRADE
CHAPTER 41 - CONSUMER CREDIT PROTECTION
SUBCHAPTER III - CREDIT REPORTING AGENCIES
Sec. 1681a. Definitions; rules of construction
(a) Definitions and rules of construction set forth in
this section are applicable for the purposes of this subchapter.
(b) The term ''person'' means any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.
(c) The term ''consumer'' means an individual.
(d) Consumer Report. -
(1) In general. - The term ''consumer report'' means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, (FOOTNOTE 1) credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for -
(FOOTNOTE 1) So in original. Probably should be ''creditworthiness,''.(A) credit or insurance to be used primarily for personal, family, or household purposes;
(B) employment purposes; or
(C) any other purpose authorized under section 1681b of this title.(2) Exclusions. - The term ''consumer report'' does not include-
(A) any -
(i) report containing information solely as to transactions or experiences between the consumer and the person making the report;
(ii) communication of that information among persons related by common ownership or affiliated by corporate control; or
(iii) communication of other information among persons related by common ownership or affiliated by corporate control, if it is clearly and conspicuously disclosed to the consumer that the information may be communicated among such persons and the consumer is given the opportunity, before the time that the information is initially communicated, to direct that such information not be communicated among such persons;(B) any authorization or approval of a specific extension of credit directly or indirectly by the issuer of a credit card or similar device;
(C) any report in which a person who has been requested by a third party to make a specific extension of credit directly or indirectly to a consumer conveys his or her decision with respect to such request, if the third party advises the consumer of the name and address of the person to whom the request was made, and such person makes the disclosures to the consumer required under section 1681m of this title; or
(D) a communication described in subsection (o) of this section.
(e) The term ''investigative consumer report'' means a consumer report or portion thereof in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with others with whom he is acquainted or who may have knowledge concerning any such items of information. However, such information shall not include specific factual information on a consumer's credit record obtained directly from a creditor of the consumer or from a consumer reporting agency when such information was obtained directly from a creditor of the consumer or from the consumer.
(f) The term ''consumer reporting agency'' means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.
(g) The term ''file'', when used in connection with information on any consumer, means all of the information on that consumer recorded and retained by a consumer reporting agency regardless of how the information is stored.
(h) The term ''employment purposes'' when used in connection with a consumer report means a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.
(i) The term ''medical information'' means information or records obtained, with the consent of the individual to whom it relates, from licensed physicians or medical practitioners, hospitals, clinics, or other medical or medically related facilities.
(j) Definitions Relating to Child Support Obligations. -
(1) Overdue support. - The term ''overdue support'' has the meaning given to such term in section 666(e) of title 42.
(2) State or local child support enforcement agency. - The term ''State or local child support enforcement agency'' means a State or local agency which administers a State or local program for establishing and enforcing child support obligations.
(k) Adverse Action. -
(1) Actions included. - The term ''adverse action'' -
(A) has the same meaning as in section 1691(d)(6) of this title; and
(B) means -(i) a denial or cancellation of, an increase in any charge for, or a reduction or other adverse or unfavorable change in the terms of coverage or amount of, any insurance, existing or applied for, in connection with the underwriting of insurance;
(ii) a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee;
(iii) a denial or cancellation of, an increase in any charge for, or any other adverse or unfavorable change in the terms of, any license or benefit described in section 1681b(a)(3)(D) of this title; and
(iv) an action taken or determination that is -(I) made in connection with an application that was made by, or a transaction that was initiated by, any consumer, or in connection with a review of an account under section 1681b(a)(3)(F)(ii) of this title; and
(II) adverse to the interests of the consumer.(2) Applicable findings, decisions, commentary, and orders. -
For purposes of any determination of whether an action is an adverse action under paragraph (1)(A), all appropriate final findings, decisions, commentary, and orders issued under section 1691(d)(6) of this title by the Board of Governors of the Federal Reserve System or any court shall apply.
(l) Firm Offer of Credit or Insurance. -
The term ''firm offer of credit or insurance'' means any offer of credit or
insurance to a consumer that will be honored if the consumer is determined,
based on information in a consumer report on the consumer, to meet the specific
criteria used to select the consumer for the offer, except that the offer may be
further conditioned on one or more of the following:
(1) The consumer being determined, based on information in the consumer's application for the credit or insurance, to meet specific criteria bearing on credit worthiness (FOOTNOTE 2) or insurability, as applicable, that are established -
(FOOTNOTE 2) So in original. Probably should be ''creditworthiness''.(A) before selection of the consumer for the offer; and
(B) for the purpose of determining whether to extend credit or insurance pursuant to the offer.(2) Verification -
(A) that the consumer continues to meet the specific criteria used to select the consumer for the offer, by using information in a consumer report on the consumer, information in the consumer's application for the credit or insurance, or other information bearing on the credit worthiness (FOOTNOTE 2) or insurability of the consumer; or
(B) of the information in the consumer's application for the credit or insurance, to determine that the consumer meets the specific criteria bearing on credit worthiness (FOOTNOTE 2) or insurability.(3) The consumer furnishing any collateral that is a requirement for the extension of the credit or insurance that was -
(A) established before selection of the consumer for the offer of credit or insurance; and
(B) disclosed to the consumer in the offer of credit or insurance.
(m) Credit or Insurance Transaction That Is Not
Initiated by the Consumer. -
The term ''credit or insurance transaction that is not initiated by the
consumer'' does not include the use of a consumer report by a person with which
the consumer has an account or insurance policy, for purposes of -
(1) reviewing the account or insurance policy; or
(2) collecting the account.
(n) State. - The term ''State'' means any State, the Commonwealth of Puerto Rico, the District of Columbia, and any territory or possession of the United States.
(o) Excluded Communications. - A communication is described in this subsection if it is a communication -
(1) that, but for subsection (d)(2)(D) of this section, would be an investigative consumer report;
(2) that is made to a prospective employer for the purpose of -(A) procuring an employee for the employer; or
(B) procuring an opportunity for a natural person to work for the employer;(3) that is made by a person who regularly performs such procurement;
(4) that is not used by any person for any purpose other than a purpose described in subparagraph (A) or (B) of paragraph (2); and
(5) with respect to which -(A) the consumer who is the subject of the communication -
(i) consents orally or in writing to the nature and scope of the communication, before the collection of any information for the purpose of making the communication;
(ii) consents orally or in writing to the making of the communication to a prospective employer, before the making of the communication; and
(iii) in the case of consent under clause (i) or (ii) given orally, is provided written confirmation of that consent by the person making the communication, not later than 3 business days after the receipt of the consent by that person;(B) the person who makes the communication does not, for the purpose of making the communication, make any inquiry that if made by a prospective employer of the consumer who is the subject of the communication would violate any applicable Federal or State equal employment opportunity law or regulation; and
(C) the person who makes the communication -(i) discloses in writing to the consumer who is the subject of the communication, not later than 5 business days after receiving any request from the consumer for such disclosure, the nature and substance of all information in the consumer's file at the time of the request, except that the sources of any information that is acquired solely for use in making the communication and is actually used for no other purpose, need not be disclosed other than under appropriate discovery procedures in any court of competent jurisdiction in which an action is brought; and
(ii) notifies the consumer who is the subject of the communication, in writing, of the consumer's right to request the information described in clause (i).
(p) Consumer Reporting Agency That Compiles and
Maintains Files on Consumers on a Nationwide Basis. -
The term ''consumer reporting agency that compiles and maintains files on
consumers on a nationwide basis'' means a consumer reporting agency that
regularly engages in the practice of assembling or evaluating, and maintaining,
for the purpose of furnishing consumer reports to third parties bearing on a
consumer's credit worthiness, (FOOTNOTE 3) credit standing, or credit capacity,
each of the following regarding consumers residing nationwide:
(FOOTNOTE 3) So in original. Probably should be ''creditworthiness,''.
(1) Public record information.
(2) Credit account information from persons who furnish that information regularly and in the ordinary course of business.
misc administrative details omitted
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1679b, 1681m, 1681t, 1692d, 1692e, 6803,
6806, 6827 of this title;
title 12 section 2605;
title 18 section 1030;
title 26 sections 6103, 7603;
title 31 sections 3701, 3711;
title 38 section 5701;
title 42 section 666;
title 50 section 438.
15 USC Sec. 1681b Has
Changes
01/22/02
Sec. 1681b. Permissible purposes of consumer reports
(<-- Previous Changes)
(<-- Previous Patriot II Changes)
(a) In general
Subject to subsection (c) of this section, any consumer reporting agency may
furnish a consumer report under the following circumstances and no other:
(1) In response to the order of a court having jurisdiction to issue such an order, or a subpoena issued in connection with proceedings before a Federal grand jury, or the request of a law enforcement officer upon his certification that the information will be used only in connection with his duties to enforce federal law, in which case the disclosure to such law enforcement officer will not be disclosed to the consumer to whom such report relates without further order of a federal court.
Note: the Pat II Sec 126 edit calls out "168 1b(a)(1)" with a space. Appears to be this section.
(Next Changes->)
(Next Patriot II Changes->)
(2) In accordance with the written instructions of the consumer to whom it relates.
(3) To a person which it has reason to believe -(A) intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer; or
(B) intends to use the information for employment purposes; or
(C) intends to use the information in connection with the underwriting of insurance involving the consumer; or
(D) intends to use the information in connection with a determination of the consumer's eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant's financial responsibility or status; or
(E) intends to use the information, as a potential investor or servicer, or current insurer, in connection with a valuation of, or an assessment of the credit or prepayment risks associated with, an existing credit obligation; or
(F) otherwise has a legitimate business need for the information -(i) in connection with a business transaction that is initiated by the consumer; or
(ii) to review an account to determine whether the consumer continues to meet the terms of the account.(4) In response to a request by the head of a State or local child support enforcement agency (or a State or local government official authorized by the head of such an agency), if the person making the request certifies to the consumer reporting agency that -
(A) the consumer report is needed for the purpose of establishing an individual's capacity to make child support payments or determining the appropriate level of such payments;
(B) the paternity of the consumer for the child to which the obligation relates has been established or acknowledged by the consumer in accordance with State laws under which the obligation arises (if required by those laws);
(C) the person has provided at least 10 days' prior notice to the consumer whose report is requested, by certified or registered mail to the last known address of the consumer, that the report will be requested; and
(D) the consumer report will be kept confidential, will be used solely for a purpose described in subparagraph (A), and will not be used in connection with any other civil, administrative, or criminal proceeding, or for any other purpose.(5) To an agency administering a State plan under section 654 of title 42 for use to set an initial or modified child support award.
(b) Conditions for furnishing and using consumer reports for employment purposes
(1) Certification from user
A consumer reporting agency may furnish a consumer report for employment purposes only if -(A) the person who obtains such report from the agency certifies to the agency that -
(i) the person has complied with paragraph (2) with respect to the consumer report, and the person will comply with paragraph (3) with respect to the consumer report if paragraph (3) becomes applicable; and
(ii) information from the consumer report will not be used in violation of any applicable Federal or State equal employment opportunity law or regulation; and(B) the consumer reporting agency provides with the report, or has previously provided, a summary of the consumer's rights under this subchapter, as prescribed by the Federal Trade Commission under section 1681g(c)(3) of this title.
(2) Disclosure to consumer
(A) In general
Except as provided in subparagraph (B), a person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless -(i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and
(ii) the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person.(B) Application by mail, telephone, computer, or other similar means
If a consumer described in subparagraph (C) applies for employment by mail, telephone, computer, or other similar means, at any time before a consumer report is procured or caused to be procured in connection with that application -(i) the person who procures the consumer report on the consumer for employment purposes shall provide to the consumer, by oral, written, or electronic means, notice that a consumer report may be obtained for employment purposes, and a summary of the consumer's rights under section 1681m(a)(3) of this title; and
(ii) the consumer shall have consented, orally, in writing, or electronically to the procurement of the report by that person.(C) Scope
Subparagraph (B) shall apply to a person procuring a consumer report on a consumer in connection with the consumer's application for employment only if -(i) the consumer is applying for a position over which the Secretary of Transportation has the power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of title 49, or a position subject to safety regulation by a State transportation agency; and
(ii) as of the time at which the person procures the report or causes the report to be procured the only interaction between the consumer and the person in connection with that employment application has been by mail, telephone, computer, or other similar means.(3) Conditions on use for adverse actions
(A) In general
Except as provided in subparagraph (B), in using a consumer report for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take such adverse action shall provide to the consumer to whom the report relates -(i) a copy of the report; and
(ii) a description in writing of the rights of the consumer under this subchapter, as prescribed by the Federal Trade Commission under section 1681g(c)(3) of this title.(B) Application by mail, telephone, computer, or other similar means
(i) If a consumer described in subparagraph (C) applies for employment by mail, telephone, computer, or other similar means, and if a person who has procured a consumer report on the consumer for employment purposes takes adverse action on the employment application based in whole or in part on the report, then the person must provide to the consumer to whom the report relates, in lieu of the notices required under subparagraph (A) of this section and under section 1681m(a) of this title, within 3 business days of taking such action, an oral, written or electronic notification -
(I) that adverse action has been taken based in whole or in part on a consumer report received from a consumer reporting agency;
(II) of the name, address and telephone number of the consumer reporting agency that furnished the consumer report (including a toll-free telephone number established by the agency if the agency compiles and maintains files on consumers on a nationwide basis);
(III) that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide to the consumer the specific reasons why the adverse action was taken; and
(IV) that the consumer may, upon providing proper identification, request a free copy of a report and may dispute with the consumer reporting agency the accuracy or completeness of any information in a report.(ii) If, under clause (B)(i)(IV), the consumer requests a copy of a consumer report from the person who procured the report, then, within 3 business days of receiving the consumer's request, together with proper identification, the person must send or provide to the consumer a copy of a report and a copy of the consumer's rights as prescribed by the Federal Trade Commission under section 1681g(c)(3) of this title.
(C) Scope
Subparagraph (B) shall apply to a person procuring a consumer report on a consumer in connection with the consumer's application for employment only if -(i) the consumer is applying for a position over which the Secretary of Transportation has the power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of title 49, or a position subject to safety regulation by a State transportation agency; and
(ii) as of the time at which the person procures the report or causes the report to be procured the only interaction between the consumer and the person in connection with that employment application has been by mail, telephone, computer, or other similar means.(4) Exception for national security investigations
(A) In general
In the case of an agency or department of the United States Government which seeks to obtain and use a consumer report for employment purposes, paragraph (3) shall not apply to any adverse action by such agency or department which is based in part on such consumer report, if the head of such agency or department makes a written finding that -(i) the consumer report is relevant to a national security investigation of such agency or department;
(ii) the investigation is within the jurisdiction of such agency or department;
(iii) there is reason to believe that compliance with paragraph (3) will -(I) endanger the life or physical safety of any person;
(II) result in flight from prosecution;
(III) result in the destruction of, or tampering with, evidence relevant to the investigation;
(IV) result in the intimidation of a potential witness relevant to the investigation;
(V) result in the compromise of classified information; or
(VI) otherwise seriously jeopardize or unduly delay the investigation or another official proceeding.(B) Notification of consumer upon conclusion of investigation
Upon the conclusion of a national security investigation described in subparagraph (A), or upon the determination that the exception under subparagraph (A) is no longer required for the reasons set forth in such subparagraph, the official exercising the authority in such subparagraph shall provide to the consumer who is the subject of the consumer report with regard to which such finding was made -(i) a copy of such consumer report with any classified information redacted (reduced or compressed) as necessary;
(ii) notice of any adverse action which is based, in part, on the consumer report; and
(iii) the identification with reasonable specificity of the nature of the investigation for which the consumer report was sought.(C) Delegation by head of agency or department
For purposes of subparagraphs (A) and (B), the head of any agency or department of the United States Government may delegate his or her authorities under this paragraph to an official of such agency or department who has personnel security responsibilities and is a member of the Senior Executive Service or equivalent civilian or military rank.
(D) Report to the Congress
Not later than January 31 of each year, the head of each agency and department of the United States Government that exercised authority under this paragraph during the preceding year shall submit a report to the Congress on the number of times the department or agency exercised such authority during the year.
(E) Definitions
For purposes of this paragraph, the following definitions shall apply:(i) Classified information
The term ''classified information'' means information that is protected from unauthorized disclosure under Executive Order No. 12958 or successor orders.
(ii) National security investigation
The term ''national security investigation'' means any official inquiry by an agency or department of the United States Government to determine the eligibility of a consumer to receive access or continued access to classified information or to determine whether classified information has been lost or compromised.
(c) Furnishing reports in connection with credit or insurance transactions that are not initiated by consumer
(1) In general
A consumer reporting agency may furnish a consumer report relating to any consumer pursuant to subparagraph (A) or (C) of subsection (a)(3) of this section in connection with any credit or insurance transaction that is not initiated by the consumer only if -(A) the consumer authorizes the agency to provide such report to such person; or
(B)(i) the transaction consists of a firm offer of credit or insurance;
(ii) the consumer reporting agency has complied with subsection (e) of this section; and
(iii) there is not in effect an election by the consumer, made in accordance with subsection (e) of this section, to have the consumer's name and address excluded from lists of names provided by the agency pursuant to this paragraph.(2) Limits on information received under paragraph (1)(B)
A person may receive pursuant to paragraph (1)(B) only -(A) the name and address of a consumer;
(B) an identifier that is not unique to the consumer and that is used by the person solely for the purpose of verifying the identity of the consumer; and
(C) other information pertaining to a consumer that does not identify the relationship or experience of the consumer with respect to a particular creditor or other entity.(3) Information regarding inquiries
Except as provided in section 1681g(a)(5) of this title, a consumer reporting agency shall not furnish to any person a record of inquiries in connection with a credit or insurance transaction that is not initiated by a consumer.
(d) Reserved
(e) Election of consumer to be excluded from lists
(1) In general
A consumer may elect to have the consumer's name and address excluded from any list provided by a consumer reporting agency under subsection (c)(1)(B) of this section in connection with a credit or insurance transaction that is not initiated by the consumer, by notifying the agency in accordance with paragraph (2) that the consumer does not consent to any use of a consumer report relating to the consumer in connection with any credit or insurance transaction that is not initiated by the consumer.
(2) Manner of notification
A consumer shall notify a consumer reporting agency under paragraph (1) -(A) through the notification system maintained by the agency under paragraph (5); or
(B) by submitting to the agency a signed notice of election form issued by the agency for purposes of this subparagraph.(3) Response of agency after notification through system Upon receipt of notification of the election of a consumer under paragraph (1) through the notification system maintained by the agency under paragraph (5), a consumer reporting agency shall -
(A) inform the consumer that the election is effective only for the 2-year period following the election if the consumer does not submit to the agency a signed notice of election form issued by the agency for purposes of paragraph (2)(B); and
(B) provide to the consumer a notice of election form, if requested by the consumer, not later than 5 business days after receipt of the notification of the election through the system established under paragraph (5), in the case of a request made at the time the consumer provides notification through the system.(4) Effectiveness of election
An election of a consumer under paragraph (1) -(A) shall be effective with respect to a consumer reporting agency beginning 5 business days after the date on which the consumer notifies the agency in accordance with paragraph (2);
(B) shall be effective with respect to a consumer reporting agency -(i) subject to subparagraph (C), during the 2-year period beginning 5 business days after the date on which the consumer notifies the agency of the election, in the case of an election for which a consumer notifies the agency only in accordance with paragraph (2)(A); or
(ii) until the consumer notifies the agency under subparagraph (C), in the case of an election for which a consumer notifies the agency in accordance with paragraph (2)(B);(C) shall not be effective after the date on which the consumer notifies the agency, through the notification system established by the agency under paragraph (5), that the election is no longer effective; and
(D) shall be effective with respect to each affiliate of the agency.(5) Notification system
(A) In general
Each consumer reporting agency that, under subsection (c)(1)(B) of this section, furnishes a consumer report in connection with a credit or insurance transaction that is not initiated by a consumer, shall -(i) establish and maintain a notification system, including a toll-free telephone number, which permits any consumer whose consumer report is maintained by the agency to notify the agency, with appropriate identification, of the consumer's election to have the consumer's name and address excluded from any such list of names and addresses provided by the agency for such a transaction; and
(ii) publish by not later than 365 days after September 30, 1996, and not less than annually thereafter, in a publication of general circulation in the area served by the agency -(I) a notification that information in consumer files maintained by the agency may be used in connection with such transactions; and
(II) the address and toll-free telephone number for consumers to use to notify the agency of the consumer's election under clause (i).(B) Establishment and maintenance as compliance
Establishment and maintenance of a notification system (including a toll-free telephone number) and publication by a consumer reporting agency on the agency's own behalf and on behalf of any of its affiliates in accordance with this paragraph is deemed to be compliance with this paragraph by each of those affiliates.(6) Notification system by agencies that operate nationwide Each consumer reporting agency that compiles and maintains files on consumers on a nationwide basis shall establish and maintain a notification system for purposes of paragraph (5) jointly with other such consumer reporting agencies.
(f) Certain use or obtaining of information prohibited
A person shall not use or obtain a consumer report for any purpose unless -
(1) the consumer report is obtained for a purpose for which the consumer report is authorized to be furnished under this section; and
(2) the purpose is certified in accordance with section 1681e of this title by a prospective user of the report through a general or specific certification.
(g) Furnishing reports containing medical information
A consumer reporting agency shall not furnish for employment purposes, or in
connection with a credit or insurance transaction, a consumer report that
contains medical information about a consumer, unless the consumer consents to
the furnishing of the report.
misc administrative details omitted
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1681a, 1681e, 1681f, 1681g, 1681k,
1681m, 1681s-1, 1681t, 1681u, 1681v, 1692d of this title;
title 31 section 3711.
15 USC Sec. 1681u Has Changes 01/22/02
AKA "Fair Credit Reporting Act" Section 625
Sec. 1681u. Disclosures to FBI for counterintelligence purposes
(<-- Previous Changes)
(<-- Previous Patriot II Changes)
(a) Identity of financial institutions
Notwithstanding section 1681b of this title or any other provision of this
subchapter, a consumer reporting agency shall furnish to the Federal Bureau of
Investigation the names and addresses of all financial institutions (as that
term is defined in section 3401 of title 12) at which a consumer maintains or
has maintained an account, to the extent that information is in the files of the
agency, when presented with a written request for that information, signed by
the Director of the Federal Bureau of Investigation, or the Director's designee
in a position not lower than Deputy Assistant Director at Bureau headquarters or
a Special Agent in Charge of a Bureau field office designated by the Director,
which certifies compliance with this section. The Director or the Director's
designee may make such a certification only if the Director or the Director's
designee has determined (the following
replaces text which is described below)
in writing, that such information is sought for the
conduct of an authorized investigation to protect against international
terrorism
terrorist activities (as defined in section 2510*
of title 18, United States Code) or clandestine intelligence activities, provided that such an
investigation of a United States person is not conducted solely upon the basis
of activities protected by the first amendment to the Constitution of the United
States.
(b) Identifying information
Notwithstanding the provisions of section 1681b of this title or any other
provision of this subchapter, a consumer reporting agency shall furnish
identifying information respecting a consumer, limited to name, address, former
addresses, places of employment, or former places of employment, to the Federal
Bureau of Investigation when presented with a written request, signed by the
Director or the Director's designee in a position not lower than Deputy
Assistant Director at Bureau headquarters or a Special Agent in Charge of a
Bureau field office designated by the Director, which certifies compliance with
this subsection. The Director or the Director's designee may make such a
certification only if the Director or the Director's designee has determined
(the following replaces text which is
described below) in
writing that such information is sought for the conduct of an authorized
investigation to protect against international
terrorism
terrorist activities (as defined in section 2510*
of title 18, United States Code) or clandestine
intelligence activities, provided that such an investigation of a United States
person is not conducted solely upon the basis of activities protected by the
first amendment to the Constitution of the United States.
(c) Court order for disclosure of consumer reports
Notwithstanding section 1681b of this title or any other provision of this
subchapter, if requested in writing by the Director of the Federal Bureau of
Investigation, or a designee of the Director in a position not lower than Deputy
Assistant Director at Bureau headquarters or a Special Agent in Charge in a
Bureau field office designated by the Director, a court may issue an order ex parte directing a consumer reporting agency to furnish a consumer report to the
Federal Bureau of Investigation, upon a showing
(the following replaces text which is
described below) in camera that the consumer
report is sought for the conduct of an authorized investigation to protect
against international
terrorism
terrorist activities (as defined in section 2510*
of title 18, United States Code) or clandestine intelligence activities, provided
that such an investigation of a United States person is not conducted solely
upon the basis of activities protected by the first amendment to the
Constitution of the United States. The terms of an order issued under this
subsection shall not disclose that the order is issued for purposes of a
counterintelligence investigation.
Note: These changes in subsections (a)-(c), as described below, probably resemble that in 12 USC Sec 3414(a)(5)(A).
(d) Confidentiality
No consumer reporting agency or officer, employee, or agent of a consumer
reporting agency shall disclose to any person, other than those officers,
employees, or agents of a consumer reporting agency necessary to fulfill the
requirement to disclose information to the Federal Bureau of Investigation under
this section, that the Federal Bureau of Investigation has sought or obtained
the identity of financial institutions or a consumer report respecting any
consumer under subsection (a), (b), or (c) of this section, and no consumer
reporting agency or officer, employee, or agent of a consumer reporting agency
shall include in any consumer report any information that would indicate that
the Federal Bureau of Investigation has sought or obtained such information or a
consumer report.
(e) Payment of fees
The Federal Bureau of Investigation shall, subject to the availability of
appropriations, pay to the consumer reporting agency assembling or providing
report or information in accordance with procedures established under this
section a fee for reimbursement for such costs as are reasonably necessary and
which have been directly incurred in searching, reproducing, or transporting
books, papers, records, or other data required or requested to be produced under
this section.
(f) Limit on dissemination
The Federal Bureau of Investigation may not disseminate information obtained
pursuant to this section outside of the Federal Bureau of Investigation, except
to other Federal agencies as may be necessary for the approval or conduct of a
foreign counterintelligence investigation, or, where the information concerns a
person subject to the Uniform Code of Military Justice, to appropriate
investigative authorities within the military department concerned as may be
necessary for the conduct of a joint foreign counterintelligence investigation.
disseminate information obtained pursuant to this
section only as provided in guidelines approved by the Attorney General.
(Next Changes->)
(Next Patriot II Changes->)
(g) Rules of construction
Nothing in this section shall be construed to prohibit information from being
furnished by the Federal Bureau of Investigation pursuant to a subpoena or court
order, in connection with a judicial or administrative proceeding to enforce the
provisions of this subchapter. Nothing in this section shall be construed to
authorize or permit the withholding of information from the Congress.
(h) Reports to Congress
On a semiannual basis, the Attorney General shall fully inform the Permanent
Select Committee on Intelligence and the Committee on Banking, Finance and Urban
Affairs of the House of Representatives, and the Select Committee on
Intelligence and the Committee on Banking, Housing, and Urban Affairs of the
Senate concerning all requests made pursuant to subsections (a), (b), and (c) of
this section.
(i) Damages
Any agency or department of the United States obtaining or disclosing any
consumer reports, records, or information contained therein in violation of this
section is liable to the consumer to whom such consumer reports, records, or
information relate in an amount equal to the sum of-
(1) $100, without regard to the volume of consumer reports, records, or information involved;
(2) any actual damages sustained by the consumer as a result of the disclosure;
(3) if the violation is found to have been willful or intentional, such punitive damages as a court may allow; and
(4) in the case of any successful action to enforce liability under this subsection, the costs of the action, together with reasonable attorney fees, as determined by the court.
(j) Disciplinary actions for violations
If a court determines that any agency or department of the United States has
violated any provision of this section and the court finds that the
circumstances surrounding the violation raise questions of whether or not an
officer or employee of the agency or department acted willfully or intentionally
with respect to the violation, the agency or department shall promptly initiate
a proceeding to determine whether or not disciplinary action is warranted
against the officer or employee who was responsible for the violation.
(k) Good-faith exception
Notwithstanding any other provision of this subchapter, any consumer reporting
agency or agent or employee thereof making disclosure of consumer reports or
identifying information pursuant to this subsection in good-faith reliance upon
a certification of the Federal Bureau of Investigation pursuant to provisions of
this section shall not be liable to any person for such disclosure under this
subchapter, the constitution of any State, or any law or regulation of any State
or any political subdivision of any State.
(l) Limitation of remedies
Notwithstanding any other provision of this subchapter, the remedies and
sanctions set forth in this section shall be the only judicial remedies and
sanctions for violation of this section.
(m) Injunctive relief
In addition to any other remedy contained in this section, injunctive relief
shall be available to require compliance with the procedures of this section. In
the event of any successful action under this subsection, costs together with
reasonable attorney fees, as determined by the court, may be recovered.
misc administrative details omitted
AMENDMENTS
Note that Pub. L. 107-56 = the "USA PATRIOT Act" or 'Patriot I'.
2001 - Pub. L. 107-56, Sec. 505(c), which directed amendment of section 624 of
the Fair Credit Reporting Act, was executed by making the amendment to this
section to reflect the probable intent of Congress and the renumbering of
section 624 as 625 by section 358(g)(1)(A) of Pub. L. 107-56. See below.
Subsec. (a). Pub. L. 107-56, Sec. 505(c)(1), inserted
''in a position not lower than Deputy Assistant Director at Bureau headquarters
or a Special Agent in Charge of a Bureau field office designated by the
Director'' after ''Investigation, or the Director's designee''
and substituted
''in writing, that such information is sought for the conduct of an authorized
investigation to protect against international terrorism or clandestine
intelligence activities, provided that such an investigation of a United States
person is not conducted solely upon the basis of activities protected by the
first amendment to the Constitution of the United States.'' for pars. (1) and
(2) requiring determination in writing that the information requested is
necessary for the conduct of an authorized foreign counterintelligence
investigation and that there are specific and articulable facts giving reason to
believe that the consumer is a foreign power or a person who is not a United
States person and is an official of a foreign power, or that the consumer is an
agent of a foreign power and is engaging or has engaged in an act of
international terrorism or clandestine intelligence activities that involve or
may involve a violation of criminal statutes of the United States.
Subsec. (b). Pub. L. 107-56, Sec. 505(c)(2), inserted
''in a position not lower than Deputy Assistant Director at Bureau headquarters
or a Special Agent in Charge of a Bureau field office designated by the
Director'' after ''signed by the Director or the Director's designee''
and
substituted ''in writing that such information is sought for the conduct of an
authorized investigation to protect against international terrorism or
clandestine intelligence activities, provided that such an investigation of a
United States person is not conducted solely upon the basis of activities
protected by the first amendment to the Constitution of the United States.'' for
pars. (1) and (2) requiring determination in writing that the information
requested is necessary to the conduct of an authorized counterintelligence
investigation and that there is information giving reason to believe that the
consumer has been, or is about to be, in contact with a foreign power or an
agent of a foreign power.
Subsec. (c). Pub. L. 107-56, Sec. 505(c)(3), inserted
''in a position not lower than Deputy Assistant Director at Bureau headquarters
or a Special Agent in Charge in a Bureau field office designated by the
Director'' after ''designee of the Director'' and substituted ''in camera that
the consumer report is sought for the conduct of an authorized investigation to
protect against international terrorism or clandestine intelligence activities,
provided that such an investigation of a United States person is not conducted
solely upon the basis of activities protected by the first amendment to the
Constitution of the United States.'' for pars. (1) and (2) requiring a showing
in camera that the consumer report is necessary for the conduct of an authorized
foreign counterintelligence investigation and there are specific and articulable
facts giving reason to believe that the consumer whose consumer report is sought
is an agent of a foreign power and is engaging or has engaged in an act of
international terrorism or in clandestine intelligence activities that involve
or may involve a violation of criminal statutes of the United States.
misc administrative details
omitted
EFFECTIVE AND TERMINATION DATES OF 2001 AMENDMENT
Amendments by title III of Pub. L. 107-56 to terminate effective on and after
the first day of fiscal year 2005 if Congress enacts a joint resolution that
such amendments no longer have the force of law, see section 303 of Pub. L.
107-56, set out as a Four-Year Congressional Review; Expedited Consideration
note under section 5311 of Title 31, Money and Finance.
Amendment by section 358(g)(1)(A) of Pub. L. 107-56 applicable with respect to
reports filed or records maintained on, before, or after Oct. 26, 2001, see
section 358(h) of Pub. L. 107-56, set out as a note under section 1829b of this
Title 12, Banks and Banking.
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 1681v of this title.
15 USC Sec. 1681v Added by Patriot I 01/22/02
AKA "Fair Credit Reporting Act" Section 626
Sec. 1681v. Disclosures to governmental agencies for counterterrorism
purposes
(<-- Previous Changes)
(<-- Previous Patriot II Changes)
(a) Disclosure
Notwithstanding section 1681b of this title or any other provision of this
subchapter, a consumer reporting agency shall furnish a consumer report of a
consumer and all other information in a consumer's file to a government agency
authorized to conduct investigations of, or intelligence or counterintelligence
activities or analysis related to,
international
terrorism
terrorist activities (as defined in section 2510*
of title 18, United States Code) when presented with a
written certification by such government agency that such information is
necessary for the agency's conduct or such investigation, activity or analysis
conduct of such investigation, activity or analysis,
and such government agency may disclose the contents of that report or
information to another government agency authorized to engage in such
investigation, activity or analysis.
The recipient of that consumer report or information may
further disclose the contents of that report or information to law enforcement
personnel of a State or political subdivision of a State (including the chief
executive officer of that State or political subdivision who has the authority
to appoint or direct the chief law enforcement officer of that State or
political subdivision) to assist the official receiving that information in the
performance of the official duties of that official. Any chief executive officer
or law enforcement personnel of a State or political subdivision of a State who
receives information pursuant to this subsection shall only use that information
consistent with such guidelines as the Attorney General shall issue to protect
confidentiality.
(Next Patriot II Changes->)
(b) Form of certification
The certification described in subsection (a) of this section shall be signed by
a supervisory official designated by the head of a Federal agency or an officer
of a Federal agency whose appointment to office is required to be made by the
President, by and with the advice and consent of the Senate.
(c) Confidentiality
No consumer reporting agency, or officer, employee, or agent of such consumer
reporting agency, shall disclose to any person, or specify in any consumer
report, that a government agency has sought or obtained access to information
under subsection (a) of this section.
(d) Rule of construction
Nothing in section 1681u of this title shall be construed to limit the authority
of the Director of the Federal Bureau of Investigation under this section.
(e) Safe harbor
Notwithstanding any other provision of this subchapter, any consumer reporting
agency or agent or employee thereof making disclosure of consumer reports or
other information pursuant to this section in good-faith reliance upon a
certification of a governmental agency pursuant to the provisions of this
section shall not be liable to any person for such disclosure under this
subchapter, the constitution of any State, or any law or regulation of any State
or any political subdivision of any State.
-SOURCE-
(Pub. L. 90-321, title VI, Sec. 626, as added Pub. L. 107-56, title III, Sec.
358(g)(1)(B), Oct. 26, 2001, 115 Stat. 327.)
EFFECTIVE AND TERMINATION DATES
Note that Pub. L. 107-56 = the "USA PATRIOT Act" or 'Patriot I'.
Amendments by title III of Pub. L. 107-56 to terminate effective on and after
the first day of fiscal year 2005 if Congress enacts a joint resolution that
such amendments no longer have the force of law, see section 303 of Pub. L.
107-56, set out as a Four-Year Congressional Review; Expedited Consideration
note under section 5311 of Title 31, Money and Finance.
Section applicable with respect to reports filed or records maintained on,
before, or after Oct. 26, 2001, see section 358(h) of Pub. L. 107-56, set out as
an Effective Date of 2001 Amendment note under section 1829b of this Title 12,
Banks and Banking.
(Next Changes->)
15 USC Sec. 6101 01/22/02
TITLE 15 - COMMERCE AND TRADE
CHAPTER 87 - TELEMARKETING AND CONSUMER FRAUD AND ABUSE PREVENTION
Sec. 6101. Findings
The Congress makes the following findings:
(1) Telemarketing differs from other sales activities in that it can be carried out by sellers across State lines without direct contact with the consumer. Telemarketers also can be very mobile, easily moving from State to State.
(2) Interstate telemarketing fraud has become a problem of such magnitude that the resources of the Federal Trade Commission are not sufficient to ensure adequate consumer protection from such fraud.
(3) Consumers and others are estimated to lose $40 billion a year in telemarketing fraud.
(4) Consumers are victimized by other forms of telemarketing deception and abuse.
(5) Consequently, Congress should enact legislation that will offer consumers necessary protection from telemarketing deception and abuse.
-SOURCE-
(Pub. L. 103-297, Sec. 2, Aug. 16, 1994, 108 Stat. 1545.)
SHORT TITLE OF 2001 AMENDMENT
Pub. L. 107-56, title X, Sec. 1011(a), Oct. 26, 2001, 115 Stat. 396, provided
that: ''This section (amending sections 6102 and 6106 of this title and sections
917 and 2325 of Title 18, Crimes and Criminal Procedure) may be cited as the
'Crimes Against Charitable Americans Act of 2001'.''
SHORT TITLE OF 2000 AMENDMENT
Pub. L. 106-534, Sec. 1, Nov. 22, 2000, 114 Stat. 2555, provided that: ''This
Act (enacting provisions set out as notes under this section and section 3732 of
Title 42, The Public Health and Welfare) may be cited as the 'Protecting Seniors
From Fraud Act'.''
SHORT TITLE
Section 1 of Pub. L. 103-297 provided that: ''This Act (enacting this chapter
and section 9b of Title 7, Agriculture, and amending section 52 of this title)
may be cited as the 'Telemarketing and Consumer Fraud and Abuse Prevention
Act'.''
CONGRESSIONAL FINDINGS
Pub. L. 106-534, Sec. 2, Nov. 22, 2000, 114 Stat. 2555, provided that:
''Congress makes the following findings:
''(1) Older Americans are among the most rapidly growing segments of our society.
''(2) Our Nation's elderly are too frequently the victims of violent crime, property crime, and consumer and telemarketing fraud.
''(3) The elderly are often targeted and retargeted in a range of fraudulent schemes.
''(4) The TRIAD program, originally sponsored by the National Sheriffs' Association, International Association of Chiefs of Police, and the American Association of Retired Persons unites sheriffs, police chiefs, senior volunteers, elder care providers, families, and seniors to reduce the criminal victimization of the elderly.
''(5) Congress should continue to support TRIAD and similar community partnerships that improve the safety and quality of life for millions of senior citizens.
''(6) There are few other community-based efforts that forge partnerships to coordinate criminal justice and social service resources to improve the safety and security of the elderly.
''(7) According to the National Consumers League, telemarketing fraud costs consumers nearly $40,000,000,000 each year.
''(8) Senior citizens are often the target of telemarketing fraud.
''(9) Fraudulent telemarketers compile the names of consumers who are potentially vulnerable to telemarketing fraud into the so-called 'mooch lists'.
''(10) It is estimated that 56 percent of the names on such 'mooch lists' are individuals age 50 or older.
''(11) The Federal Bureau of Investigation and the Federal Trade Commission have provided resources to assist private-sector organizations to operate outreach programs to warn senior citizens whose names appear on confiscated 'mooch lists'.
''(12) The Administration on Aging was formed, in part, to provide senior citizens with the resources, information, and assistance their special circumstances require.
''(13) The Administration on Aging has a system in place to inform senior citizens of the dangers of telemarketing fraud.
''(14) Senior citizens need to be warned of the dangers
of telemarketing fraud before they become victims of such fraud.''
SENIOR FRAUD PREVENTION PROGRAM
Pub. L. 106-534, Sec. 3, Nov. 22, 2000, 114 Stat. 2556, provided that:
''(a) Authorization of Appropriations. - There is authorized to be appropriated to the Attorney General $1,000,000 for each of the fiscal years 2001 through 2005 for programs for the National Association of TRIAD.
''(b) Comptroller General. - The Comptroller General of
the United States shall submit to Congress a report on the effectiveness of the
TRIAD program 180 days prior to the expiration of the authorization under this
Act (see Short Title of 2000 Amendment note above), including an analysis of
TRIAD programs and activities; identification of impediments to the
establishment of TRIADs across the Nation; and recommendations to improve the
effectiveness of the TRIAD program.''
DISSEMINATION OF INFORMATION
Pub. L. 106-534, Sec. 4, Nov. 22, 2000, 114 Stat. 2556, provided that:
''(a) In General. - The Secretary of Health and Human Services, acting through the Assistant Secretary of Health and Human Services for Aging, shall provide to the Attorney General of each State and publicly disseminate in each State, including dissemination to area agencies on aging, information designed to educate senior citizens and raise awareness about the dangers of fraud, including telemarketing and sweepstakes fraud.
''(b) Information. - In carrying out subsection (a), the Secretary shall -
''(1) inform senior citizens of the prevalence of telemarketing and sweepstakes fraud targeted against them;
''(2) inform senior citizens how telemarketing and sweepstakes fraud work;
''(3) inform senior citizens how to identify telemarketing and sweepstakes fraud;
''(4) inform senior citizens how to protect themselves against telemarketing and sweepstakes fraud, including an explanation of the dangers of providing bank account, credit card, or other financial or personal information over the telephone to unsolicited callers;
''(5) inform senior citizens how to report suspected attempts at or acts of fraud;
''(6) inform senior citizens of their consumer protection rights under Federal law; and
''(7) provide such other information as the Secretary considers necessary to protect senior citizens against fraudulent telemarketing and sweepstakes promotions.
''(c) Means of Dissemination. - The Secretary shall determine the means to disseminate information under this section. In making such determination, the Secretary shall consider -
''(1) public service announcements;
''(2) a printed manual or pamphlet;
''(3) an Internet website;
''(4) direct mailings; and
''(5) telephone outreach to individuals whose names appear on so-called 'mooch lists' confiscated from fraudulent marketers.
''(d) Priority. - In disseminating information under this section, the Secretary shall give priority to areas with high incidents of fraud against senior citizens.''
15 USC Sec. 6102
Has Changes
01/22/02
Sec. 6102. Telemarketing rules
(a) In general
(<-- Previous Changes)
(1) The Commission shall prescribe rules prohibiting deceptive telemarketing acts or practices and other abusive telemarketing acts or practices.
(2) The Commission shall include in such rules respecting deceptive telemarketing acts or practices a definition of deceptive telemarketing acts or practices which shall include fraudulent charitable solicitations, and which may include acts or practices of entities or individuals that assist or facilitate deceptive telemarketing, including credit card laundering.
(3) The Commission shall include in such rules respecting other abusive telemarketing acts or practices -(A) a requirement that telemarketers may not undertake a pattern of unsolicited telephone calls which the reasonable consumer would consider coercive or abusive of such consumer's right to privacy,
(B) restrictions on the hours of the day and night when unsolicited telephone calls can be made to consumers,and(Pat I)
(C) a requirement that any person engaged in telemarketing for the sale of goods or services shall promptly and clearly disclose to the person receiving the call that the purpose of the call is to sell goods or services and make such other disclosures as the Commission deems appropriate, including the nature and price of the goods and services; (FOOTNOTE 1) and
(FOOTNOTE 1) So in original. The semicolon probably should be a comma.
(D) a requirement that any person engaged in telemarketing for the solicitation of charitable contributions, donations, or gifts of money or any other thing of value, shall promptly and clearly disclose to the person receiving the call that the purpose of the call is to solicit charitable contributions, donations, or gifts, and make such other disclosures as the Commission considers appropriate, including the name and mailing address of the charitable organization on behalf of which the solicitation is made.
(Next Changes->)In prescribing the rules described in this paragraph, the Commission shall also consider recordkeeping requirements.
(b) Rulemaking
The Commission shall prescribe the rules under subsection (a) of this section
within 365 days after August 16, 1994. Such rules shall be prescribed in
accordance with section 553 of title 5.
(c) Enforcement
Any violation of any rule prescribed under subsection (a) of this section shall
be treated as a violation of a rule under section 57a of this title regarding
unfair or deceptive acts or practices.
(d) Securities and Exchange Commission rules
(1) Promulgation
(A) In general
Except as provided in subparagraph (B), not later than 6 months after the effective date of rules promulgated by the Federal Trade Commission under subsection (a) of this section, the Securities and Exchange Commission shall promulgate, or require any national securities exchange or registered securities association to promulgate, rules substantially similar to such rules to prohibit deceptive and other abusive telemarketing acts or practices by persons described in paragraph (2).
(B) Exception
The Securities and Exchange Commission is not required to promulgate a rule under subparagraph (A) if it determines that -(i) Federal securities laws or rules adopted by the Securities and Exchange Commission thereunder provide protection from deceptive and other abusive telemarketing by persons described in paragraph (2) substantially similar to that provided by rules promulgated by the Federal Trade Commission under subsection (a) of this section; or
(ii) such a rule promulgated by the Securities and Exchange Commission is not necessary or appropriate in the public interest, or for the protection of investors, or would be inconsistent with the maintenance of fair and orderly markets.
If the Securities and Exchange Commission determines that an exception described in clause (i) or (ii) applies, the Securities and Exchange Commission shall publish in the Federal Register its determination with the reasons for it.(2) Application
(A) In general
The rules promulgated by the Securities and Exchange Commission under paragraph (1)(A) shall apply to a broker, dealer, transfer agent, municipal securities dealer, municipal securities broker, government securities broker, government securities dealer, investment adviser or investment company, or any individual associated with a broker, dealer, transfer agent, municipal securities dealer, municipal securities broker, government securities broker, government securities dealer, investment adviser or investment company. The rules promulgated by the Federal Trade Commission under subsection (a) of this section shall not apply to persons described in the preceding sentence.
(B) Definitions
For purposes of subparagraph (A) -(i) the terms ''broker'', ''dealer'', ''transfer agent'', ''municipal securities dealer'', ''municipal securities broker'', ''government securities broker'', and ''government securities dealer'' have the meanings given such terms by paragraphs (4), (5), (25), (30), (31), (43), and (44) of section 78c(a) of this title;
(ii) the term ''investment adviser'' has the meaning given such term by section 80b-2(a)(11) of this title; and (iii) the term ''investment company'' has the meaning given such term by section 80a-3(a) of this title.
(e) Commodity Futures Trading Commission rules
(1) Application
The rules promulgated by the Federal Trade Commission under subsection (a) of this section shall not apply to persons described in section 9b(1) of title 7.(2) Omitted
-SOURCE-
(Pub. L. 103-297, Sec. 3, Aug. 16, 1994, 108 Stat. 1545;
Pub. L. 107-56, title X, Sec. 1011(b)(1), (2), Oct. 26, 2001, 115 Stat. 396.)
misc administrative details omitted
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 6103, 6104, 6105, 6107, 6108 of this
title;
title 7 section 9b.
15 USC Sec. 6106
01/22/02
Sec. 6106. Definitions
For purposes of this chapter:
(1) The term ''attorney general'' means the chief legal officer of a State.
(2) The term ''Commission'' means the Federal Trade Commission.
(3) The term ''State'' means any State of the United States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, and any territory or possession of the United States.
(4) The term ''telemarketing'' means a plan, program, or campaign which is conducted to induce purchases of goods or services, or a charitable contribution, donation, or gift of money or any other thing of value, by use of one or more telephones and which involves more than one interstate telephone call. The term does not include the solicitation of sales through the mailing of a catalog which -
(A) contains a written description, or illustration of the goods or services offered for sale,
(B) includes the business address of the seller,
(C) includes multiple pages of written material or illustrations, and
(D) has been issued not less frequently than once a year, where the person making the solicitation does not solicit customers by telephone but only receives calls initiated by customers in response to the catalog and during those calls takes orders only without further solicitation.
-SOURCE-
(Pub. L. 103-297, Sec. 7, Aug. 16, 1994, 108 Stat. 1550;
Pub. L. 107-56, title X, Sec. 1011(b)(3), Oct. 26, 2001, 115 Stat. 396.)
AMENDMENTS
2001 - Par. (4). Pub. L. 107-56 inserted '', or a charitable contribution,
donation, or gift of money or any other thing of value,'' after ''services'' in
introductory provisions.