“A reputation once broken may possibly be repaired, but the world will always keep their eyes on the spot where the crack was.” ― Joseph Hall
Consumers may be injured by inaccurate data that they cannot review or correct. There’s a hole in the bucket, dear Congress.
The children’s song, “There’s a Hole in the Bucket,” exemplifies the conundrum many consumers experience when they are denied opportunities or inappropriately solicited. Data brokers maintain files with over 1,500 pieces of pieces of personal data on each of us. There are over 3,500 data brokers in the U.S. Only about one-third of them permit individuals to “opt-out” of inclusion in their data banks, usually for a fee. Unless and until you recognize an unexplained pattern of lost job opportunities, rejected apartment applications or are targeted by unsolicited marketing, you may not care what data brokers maintain in your files.
Imagine this: You are 22 years old and gung-ho to use your brand-spanking new business organization degree as an entry-level traveling corporate trainer. You grant recruiters the right to conduct background checks after they indicate their interest in you based on your resume. You get rejection after rejection. You finally muster the courage to call a recruiter and ask why, and she explains that you are not a good fit based on background information that describes you as 39 years old, the parent of four young children, having a Ph.D. and a sufferer of agoraphobia. None of this information is true.
Your prospective employers may have relied on information provided by data brokers or credit rating agencies (CRA) in determining that you are not a viable candidate. Now that you know inaccurate information is being reported about you, you are confident that you can correct your files and the employers will reverse their decisions. You can if the inaccurate information is from a CRA. But if data brokers provided the incorrect information, you will find yourself in the miserable position of knowing your files are wrong and being powerless to correct them. You know prospective employers have considered inaccurate information about you, but you don’t know which employers relied on which data brokers or which inaccuracies in your files made you undesirable for hire. You don’t know how many data brokers have files on you or what evidence you can provide to disprove the inaccurate information about you. You and “Dear Henry” share the predicament of wanting to fix the hole in the bucket but lacking the tools to do so.
Let the screening begin.
Many decisions about consumers, job applicants and second dates are based on inaccurate information provided by data brokers. Data brokers sell consumers’ personally identifiable information (PII) to be used in marketing, people searches, fraud detection and risk management. The FTC defines data brokers as “companies that collect information, including personal information about consumers, from a wide variety of sources for the purpose of reselling such information to their customers for various purposes, including verifying an individual’s identity, differentiating records, marketing products, and preventing financial fraud.” The Fair Credit Reporting Act (FCRA) applies to CRAs like Experian, TransUnion and Equifax, not data brokers. CRAs must take reasonable steps to ensure the accuracy of the consumer PII they distribute and they must provide consumers the opportunity to review and correct their records. There are zero federal statutes or regulations affecting data brokers in this regard. If enacted as introduced in 2009, the Data Accountability and Trust Act (DATA) would provide procedures for individuals to audit and verify the accuracy of data held by data brokers. The swathe of data collected by data brokers is astounding and troubling. Add the fact that data brokers are generally less expensive to use than CRAs, and employers and individuals are at a distinct disadvantage relative to data brokers.
Here’s what’s in the bucket.
Reports about consumers are based on information showing what they own or use; who they are with, have lost or are fighting; how they make, save and spend their money; and what interests or ails them, including mental, genetic and “other” diseases that may be embarrassing. For example, when you register your car, record a deed of trust, activate a warranty, join a Facebook group, fill a new prescription, or get sued, married, divorced or widowed, data brokers collect that information. It is tacitly understood that PII from data brokers is not accurate and enables discrimination in hiring, the provision of resources and opportunities. Consumer advocacy groups report that information used in people search sites is not vetted — the consumer has the responsibility of figuring out which of 67 people named “Pamela Samuelson” authored Protecting Privacy Through Copyright Law?. Marketing information is more accurate, but is still unreliable. For example, a data broker may correctly report that a household member purchased a new car, but err by addressing car wash coupons to the resident third-grader. Risk mitigation information is the most accurate, because it is expected to at least correspond to the correct person, even if the results are outdated.
This brings to mind a character on a show who changed his name, because he shared it with well-known artist who was convicted of sex crimes. His new name, unfortunately, was shared with a well-known artist who was convicted of murder. How do you feel knowing that you may be judged by the bad report of someone who has a name similar to yours? The identities of entities using bad data may influence your answer.
Who’s looking in the bucket?
Financial institutions, government agencies, political organizers and insurance companies use the services of data brokers. As of May, one of the largest data broker’s customers included “47 Fortune 100 clients; 12 of the top 15 credit card issuers; seven of the top 10 retail banks; eight of the top 10 telecom/media companies; seven of the top 10 retailers; nine of the top 10 property and casualty insurers; three of the top five domestic airlines; and six of the top 10 U.S. hotels.” How likely are you to recognize that after your namesake niece filed for bankruptcy that the hotel prices you were offered increased by 18%?
No. If data brokers filled the bucket, no federal law gives an individual the right to look in the bucket. A subpoena or other discovery procedure may be your best option to see your file. If a CRA filled the bucket, yes, an individual has the right to review and correct the information in the bucket.
What can you do?
- Educate yourself about your rights. See whether your state has any laws that offer you protection. California, for example, shields victims of violent crimes from having their PII publicized on the internet.
- Opt out of as many of the data broker sites as is reasonable. Visit this website to get started: http://www.computerworld.com/article/2849263/doxxing-defense-remove-your-personal-info-from-data-brokers.html.
- Lobby your federal and state legislators and align yourself with organizations that advocate for the right to control your PII.
 There’s a Hole in the Bucket, Songwriters: Harry Belafonte, Odetta Felious Gordon © Next Decade Entertainment, Inc.
 FTC, Protecting Consumer Privacy in an Era of Rapid Change, at 68 (Mar. 2012).
Steve Kroft, The Data Brokers: Selling Your Personal Information, 60 Minutes, ep. “The Data Brokers” aired on CBS Mar. 9, 2014, http://www.cbsnews.com/news/the-data-brokers-selling-your-personal-information/.
 Exec. Office of the Pres., Big Data: Seizing Opportunities, Preserving Values, pp. 51-53, May 2014, http://www.whitehouse.gov/sites/default/files/docs/big_data_privacy_report_may_1_2014.pdf.
 U.S. Senate Commerce Committee, A Review of the Data Broker Industry: Collection, Use, and Sale of Consumer Data for Marketing Purposes (December 2013).