Debt collectors are increasingly using internet and mobile technologies as part of the debt collection process. While these technologies may provide conveniences for collectors and consumers alike, they also create the potential for new forms of deception and raise novel privacy concerns. Much of the problem lies in the failure to update the Fair Debt Collection Practices Act (FDCPA). Despitet he dramatic transformation of the debt collection industry over the last thirty years, the statute has remained largely backward looking, even in the face of calls to modernize the act from regulators, industry representatives, and consumer advocates.
Recently, this landscape has undergone a fundamental change. Congress vested the newly created Consumer Financial Protection Bureau (CFPB) with rulemaking authority over the FDCPA. This marks an opportunity to address the pressing problems raised by debt collectors' use of new and emerging technologies, and to provide guidance regarding what protections are necessary in order to preserve consumer privacy and prevent harassment. In some cases, the challenges raised by new technology can be sufficiently resolved through the current FDCPA framework, while in other areas, reform is sorely needed.
This Comment outlines the challenges new technologies pose, analyzes the areas of tension that cannot be resolved under the current FDCPA framework, and recommends three areas of reform. First, the term "communication" should be redefined in order to applied to new communication platforms that pose a threat to consumer privacy. Second, the CFPB should reform the FDCPA to ensure that new communication technologies do not become a one-way street, by requiring that communications made through new technologies include necessary disclosures, an opt-out mechanism, and a dispute process that consumers can use through the same technology that the debt collector used to contact the consumer. And third, the CFPB should consider imposing an express written consent requirement on the use of technologies that may cause consumers financial harm.