A first and last name may be enough to identify someone, but it isn’t enough to avoid liability when doing a background check/consumer report.
On November 10, 2021, the Bureau of Consumer Financial Protection published an advisory opinion titled “Fair Credit Reporting; Name-Only Matching Procedures.” The short version: Relying on a name alone when doing a background check isn’t enough and could expose the firm requesting the background check to significant liability.
The bureau said it issued the opinion “to highlight that a consumer reporting agency that uses inadequate matching procedures to match information to consumers, including name-only matching ( i.e., matching information to the particular consumer who is the subject of a consumer report based solely on whether the consumer’s first and last names are identical or similar to the names associated with the information), in preparing consumer reports is not using reasonable procedures to assure maximum possible accuracy under section 607(b) of the Fair Credit Reporting Act (FCRA).”
The Pandemic and Name-Only Matching
The opinion was prompted by the consequences of the COVID-19 pandemic, such as “job loss, reduced work hours, or the death or illness of a family member” that has “contributed to an increase in housing and financial insecurity for many households.”
According to the bureau, low-income and minority individuals have been disproportionately affected economically by the pandemic. In addition, the “risk of mismatching from name-only matching is likely to be greater for Hispanic, Asian, and Black individuals because there is less last-name diversity in those populations than among the non-Hispanic white population.”
While the advisory opinion is recent, the issue is not new. The bureau noted that “concerns about the accuracy of information included in consumer reports are long-standing.” And if you’re a loyal reader, then you probably agree since we’ve written about this topic many times. Some examples include:
False Matches
In some cases, names can be matched with a high certainty of accuracy. A county-level criminal search with additional identifiers, such as date of birth, is relatively easy to match to an individual.
Other types of searches are more difficult, if not impossible. Civil searches typically do not provide identifiers on the court index, and even reviewing other court documents may not yield other identifiers. In some areas, such as New York City, these reviews can take weeks or months, due to court staffing issues and high demand, and yield no useable information.
And even for the “easier” research, such as criminal searches, a date of birth may not be enough for someone with a common name.
The matching criteria issue isn’t restricted to court research. For example, consumer reports typically consist of several other components, including checks of sex offender lists, national criminal databases, and media and social media research. If those searches are included in the background check, the same matching rules apply and, sometimes, the availability of identifiers may be limited or non-existent.
Avoiding Liability
We have always felt that this is an important issue. Now, with the November 2021 advisory opinion, the Consumer Financial Protection Bureau has explicitly stated that “it has been the consistent view of the Bureau that name-only matching is not a procedure that assures maximum possible accuracy, and thus, consumer reporting agencies that use name-only matching violate FCRA section 607(b).”
End users of consumer reports, such as employers, landlords and others, should mitigate their liability by ensuring that their consumer reporting agency (CRA) vendor is complying with this opinion and other FCRA requirements.
