On May 3, 2012, the Federal Trade Commission (FTC) joined the Department of Justice (DOJ) and the Consumer Financial Protection Bureau (CFPB) in filing a memorandum brief in support of the constitutionality of the Fair Credit Reporting Act (FCRA), established in 1970 to protect credit report information privacy and to ensure that the information supplied by consumer reporting agencies (CRAs) is as accurate as possible.

In the case of Shamara T. King vs. General Information Services, Inc. (GIS), the CRAs address a provision of the FCRA that balances the Act’s dual purposes, i.e., to protect consumers from privacy invasions caused by the disclosure of sensitive information and to ensure a sufficient flow of information to allow the CRAs to fulfill their vital role.) The provision, Section 1681c, bars CRAs from disclosing arrest records or other adverse information that is more than seven years old, in most cases.

The agencies brief refutes GIS’s argument that this FCRA protection is an unconstitutional restriction of free speech, pointing out that the recent U.S. Supreme Court case law that GIS cites to support its argument, Sorrell v. IMS Health Inc., “does not change the settled First Amendment standards that apply to commercial speech, nor does it suggest that restrictions on the dissemination of data for commercial purposes

[such as those by CRAs] must satisfy stricter standards.” Therefore, the brief concludes, the court should not invalidate the FCRA provision, as it “directly advances the government’s substantial interest in protecting individuals’ privacy” while also accommodating the interest of businesses. The case is pending.