(Subtitle A: Disclosure of Nonpublic Personal Information, codified at 15 U.S.C. § 6801 through 15 U.S.C. § 6809)
The Safeguards Rule requires financial institutions to develop a written information security plan that describes how the company is prepared for, and plans to continue to protect clients' nonpublic personal information. (The Safeguards Rule also applies to information of those no longer consumers of the financial institution.) This plan must include:
• Denoting at least one employee to manage the safeguards,
• Constructing a thorough [risk management] on each department handling the nonpublic information,
• Develop, monitor, and test a program to secure the information, and
• Change the safeguards as needed with the changes in how information is collected, stored, and used.
This rule is intended to do what most businesses should already be doing: protect their clients. The Safeguards Rule forces financial institutions to take a closer look at how they manage private data and to do a risk analysis on their current processes. No process is perfect, so this has meant that every financial institution has had to make some effort to comply with the GLBA.
(Subtitle B: Fraudulent Access to Financial Information, codified at 15 U.S.C. § 6821 through 15 U.S.C. § 6827)
Pretexting (sometimes referred to as "social engineering") occurs when someone tries to gain access to personal nonpublic information without proper authority to do so. This may entail requesting private information while impersonating the account holder, by phone, by mail, by email, or even by "phishing" (i.e., using a "phony" website or email to collect data). The GLBA has provisions that require the financial institution to take all precautions necessary to protect and defend the consumer and associated nonpublic information. Pretexting is illegal and punishable by law beyond any recognition by the GLBA.
Financial Institutions Defined
The GLBA defines "financial institutions" as: ..."companies that offer financial products or services to individuals, like loans, financial or investment advice, or insurance. The Federal Trade Commission (FTC) has jurisdiction over financial institutions similar to, and including, these:
• non-bank mortgage lenders,
• loan brokers,
• some financial or investment advisers,
• debt collectors,
• tax return preparers,
• banks, and
• real estate settlement service providers.
These companies must also be considered significantly engaged in the financial service or production that defines them as a "financial institution".
Insurance has jurisdiction first by the state, provided the state law at minimum complies with the GLBA. State law can require greater compliance, but not less than what is otherwise required by the GLBA.
Consumer vs. Customer Defined
The Gramm-Leach-Bliley Act defines a ‘consumer' as
"an individual who obtains, from a financial institution, financial products or services which are to be used primarily for personal, family, or household purposes, and also means the legal representative of such an individual." (See 15 U.S.C. § 6809(9).}
A ‘customer' is a consumer that has developed a relationship with privacy rights protected under the GLBA. A ‘customer' is not someone using an automated teller machine (ATM) or having a check cashed at a cash advance business. These are not ongoing relationships like a ‘customer' might have; i.e. a mortgage loan, tax advising, or credit financing. A business is not an individual with personal nonpublic information, so a business cannot be a customer under the GLBA. A business, however, may be liable for compliance to the GLBA depending upon the type of business and the activities utilizing individual's personal nonpublic information.
Consumer/Client Privacy Rights
Under the GLBA, financial institutions must provide their clients a privacy notice that explains what information the company gathers about the client, where this information is shared, and how the company safeguards that information. This privacy notice must be given to the client prior to entering into an agreement to do business. There are exceptions to this when the client accepts a delayed receipt of the notice in order to complete a transaction on a timely basis. This has been somewhat mitigated due to online acknowledgement agreements requiring the client to read or scroll through the notice and check a box to accept terms.
The privacy notice must also explain to the consumer of the opportunity to ‘opt-out'. Opting out means that the client can say "no" to allowing their information to be shared with affiliated parties. The Fair Credit Reporting Act is responsible for the ‘opt-out' opportunity, but the privacy notice must inform the consumer of this right under the GLBA. The client cannot opt-out of:
• information shared with those providing priority service to the financial institution
• marketing of products or services for the financial institution
• when the information is deemed legally required.
Violation of the GLBA may result in a civil action brought by the United States Attorney General. The penalties, as amended under the Financial Institution Privacy Protection Act of 2003 (108th CONGRESS - 1st Session - S. 1458; To amend the Gramm-Leach-Bliley Act to provide for enhanced protection of nonpublic personal information, including health information, and for other purposes., In The Senate of the United States, July 25 (legislative day, JULY 21), 2003)include,
• "the financial institution shall be subject to a civil penalty of not more than $100,000 for each such violation"
• "the officers and directors of the financial institution shall be subject to, and shall be personally liable for, a civil penalty of not more than $10,000 for each such violation".
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