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.