Canada: U.S. Consumer Protection Regulator Consults On Use Of Alternative Credit Data

On February 16, 2017, the U.S. Consumer Financial Protection Bureau (the "CFPB") issued a Request for Information ("RFI") seeking feedback from the public on the use or potential use of alternative data and methodologies to assess consumer credit risk, thereby expanding access to credit for credit invisible segments of the population. Presently, most lenders make credit decisions using modeling techniques that rely on "traditional data" such as loan history, credit limits, debt repayment history, and information relating to tax liens and bankruptcy. Lenders use this information to assess creditworthiness of consumers to determine the likelihood of whether a consumer will default or become delinquent on a loan within a given period of time.

However, in the U.S. approximately 45 million Americans do not have access to credit as a result of not having a credit file with any credit bureau, or credit files that are too limited or stale to generate a reliable score ("credit invisible consumers"). The CFPB is seeking feedback on whether "alternative data", such as payment information on phone bills, rent, insurance, utilities, as well as checking account transaction information and social media activities, could provide an innovative solution to this problem. Enhanced data points could potentially address the information asymmetry that currently prevents lenders from serving "credit invisible consumers".

In Canada, privacy legislation and other laws place restrictions on the types of personal information and other information that can be used in making credit decisions; the role of consent is critical. In contrast, the U.S. lacks a comprehensive privacy regime and has not examined credit risk assessment from that perspective.

Through its RFI, the CFPB is seeking information from interested parties on the development and adoption of innovations relating to the application of alternative data, and current and potential consumer benefits and risks associated with such application. The following is a summary of some of the risks and benefits identified by the CFPB:

Benefits

  • Greater Access to Credit: Consumers without a traditional loan repayment history could substitute such data points with regular bill payments for cell phones, utilities or rent. This information could in some cases prove sufficient for a lender to assess the creditworthiness of consumers and perhaps deem them to be viable credit risks.
  • Improved Credit Prediction: Access to more practical and nuanced information about a consumer's financial behaviour, pattern and context could allow lenders to identify trends in the consumer's profile. Social media job status changes could perhaps help identify those individuals with low credit scores who have surmounted previous financial obstacles, and have a much better future credit outlook than the credit score snapshot would suggest.
  • Profitability, Cost Savings and Convenience: Currently, many lenders forego providing credit to consumers with poor credit scores or non-existent credit history. With better data, lenders can market their products and services to more consumers, thereby increasing revenues and profits.

Risks

  • Privacy: As is the case with big data generally, the CFPB has identified privacy issues as one of the primary risks associated with the use of such alternative data. Most forms of alternative data include information that can reveal fairly intimate details about an individual, such as social media activity, behaviour and location patterns. Lender access to such data would likely need to be regulated and protected explicitly at the legislative level.
  • Data Quality: Some types of alternative data may be prone to greater rates of error due to the potential that the quality standards required to be met for their original purpose are less rigorous relative to those applied to traditional data destined to be used in the credit approval process. Incomplete, inconsistent or inaccurate data could have a detrimental impact on lenders' ability to correctly and fairly assess a consumer's credit viability.
  • Discrimination: Greater access to information also introduces the potential for discrimination. Machine learning algorithms may predict a consumer's likelihood of default, but could correlate such probabilities with race, sex, ethnicity, religion, national origin, marital status, age or some other basis protected by law. Using alternative data as a proxy for identification of certain sub-groups of the population could be a violation of anti-discrimination laws.
  • Unintended Consequences and Control: The CFPB has expressed concern that use of alternative data could have unintended negative consequences for some consumers. For example, frequent moves and address changes by members of the military could create a false impression of overall instability. Alternative data could also include information about consumers that is beyond their control. Such data would make it difficult for consumers to improve their credit profile and thereby harden barriers to economic and social mobility.

Canadian Perspective

The Canadian regulatory landscape already addresses many of the risks identified in the CFPB RFI. Provincial credit reporting legislation governs the use of traditional credit data and includes a number of safeguards intended to protect consumers. For example, an entity which for profit furnishes credit information or personal information, or both, pertaining to a consumer to a third party for the purposes of that third party's credit assessment is required to be licensed and regulated as a credit reporting agency in Ontario.

In addition, under such legislation, consumers have certain rights, including the right to be notified when a credit application they have made has been refused based on their credit score (otherwise known as the requirement to provide "adverse action letters" to credit applicants), and the ability to access, review and correct their credit report (for example if the credit report includes incorrect information as a result of identity theft or error).

However, the potential use by lenders of non-traditional credit data which consumers may not be aware of, or able to access and correct, could lead to similar data quality concerns in Canada as identified above in the U.S. It is worth noting that the to the extent the non-traditional data points are "personal information", Canadian consumers would have a right under privacy legislation to access and/or correct any such information.

The privacy and discrimination concerns as outlined above in the U.S. have , in large part, been addressed in Canada through human rights legislation and privacy laws, although the advent of Big Data and analytics techniques (including the use of aggregate and anonymous personal information) is making once-clear regulatory boundaries significantly murkier. The Office of the Privacy Commissioner of Canada ("OPC") recognized this in its recent Discussion Paper Exploring Potential Enhancements to Consent under the Personal Information Protection and Electronic Documents Act, where it noted that the challenges of obtaining meaningful, valid consent in a Big Data world. The OPC thought that some of the Big Data concerns could potentially be addressed by sectoral "codes of practice" (and observed that in Australia, credit reporting bureaus can develop codes of practice which are then registered by the commissioner there).

The OPC has also explored the idea of legislating "no-go zones" of data – in short, prohibiting the collection, use or disclosure of personal information in certain circumstances. They could be based on a variety of criteria, such as the sensitivity of the data, the nature of the proposed use or disclosure or vulnerabilities associated with the group whose data is being processed. Alternative means of assessing credit risk, and attend concerns about the sensitivity of this information and the potential for discriminatory impacts, suggest that this type of use of this information may attract future regulatory scrutiny.

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions