Advanced Criminal Investigations and Intelligence Operations

by Unknown

  asked during the test and is informed of the right to termi-

  nate the test at any time

  Appendix D: Consumer and Credit Data Privacy Laws

  429

  (3) Actual testing phase

  During the actual testing phase, the examiner does not ask such

  examinee any question relevant during the test that was not

  presented in writing for review to such examinee before the test.

  (4) Posttest phase

  Before any adverse employment action, the employer shall

  (A) Further interview the examinee on the basis of the results

  of the test

  (B) Provide the examinee with

  (i) A written copy of any opinion or conclusion ren-

  dered as a result of the test

  (ii) A copy of the questions asked during the test along

  with the corresponding charted responses

  (5) Maximum number and minimum duration of tests

  The examiner shall not conduct and complete more than five

  polygraph tests on a calendar day on which the test is given and

  shall not conduct any such test for less than a 90 minute duration.

  (c) Qualifications and requirements of examiners

  The exemptions provided under subsections (d)–(f) of Section 2006 of

  this title shall not apply unless the individual who conducts the poly-

  graph test satisfies the requirements under the following paragraphs:

  (1) Qualifications

  The examiner

  (A) Has a valid and current license granted by licensing and

  regulatory authorities in the state in which the test is to be

  conducted, if so required by the state

  (B) Maintains a minimum of a $50,000 bond or an equivalent

  amount of professional liability coverage

  (2) Requirements

  The examiner

  (A) Renders any opinion or conclusion regarding the test

  (i) In writing and solely on the basis of an analysis of

  polygraph test charts

  (ii) That does not contain information other than

  admissions, information, case facts, and interpreta-

  tion of the charts relevant to the purpose and stated

  objectives of the test

  (iii) That does not include any recommendation con-

  cerning the employment of the examinee

  (B) Maintains all opinions, reports, charts, written questions,

  lists, and other records relating to the test for a minimum

  period of 3 years after administration of the test

  430

  Appendix D: Consumer and Credit Data Privacy Laws

  § 2008. Disclosure of Information

  (a) In general

  A person, other than the examinee, may not disclose information

  obtained during a polygraph test, except as provided in this section.

  (b) Permitted disclosures

  A polygraph examiner may disclose information acquired from a

  polygraph test only to

  (1) The examinee or any other person specifically designated in

  writing by the examinee

  (2) The employer that requested the test

  (3) Any court, governmental agency, arbitrator, or mediator, in

  accordance with due process of law, pursuant to an order from a

  court of competent jurisdiction

  (c) Disclosure by employer

  An employer (other than an employer described in subsection (a), (b),

  or (c) of Section 2006 of this title) for whom a polygraph test is con-

  ducted may disclose information from the test only to

  (1) A person in accordance with subsection (b) of this section

  (2) A governmental agency, but only insofar as the disclosed infor-

  mation is an admission of criminal conduct

  § 2009. Effect on Other Law and Agreements

  Except as provided in subsections (a), (b), and (c) of Section 2006 of this title, this chapter shall not preempt any provision of any state or local law or of any negotiated col ective bargaining agreement that prohibits lie detector tests or is more restrictive with respect to lie detector tests than any provision of this chapter.

  Fair Credit Reporting Act (15 U.S.C. 1681)

  § 1681. Congressional Findings and Statement of Purpose

  (a) Accuracy and fairness of credit reporting

  The Congress makes the following findings:

  (1) The banking system is dependent upon fair and accurate credit

  reporting. Inaccurate credit reports directly impair the effi-

  ciency of the banking system, and unfair credit reporting meth-

  ods undermine the public confidence which is essential to the

  continued functioning of the banking system.

  (2) An elaborate mechanism has been developed for investigating

  and evaluating the credit worthiness, credit standing, credit

  capacity, character, and general reputation of consumers.

  Appendix D: Consumer and Credit Data Privacy Laws

  431

  (3) Consumer reporting agencies have assumed a vital role in

  assembling and evaluating consumer credit and other informa-

  tion on consumers.

  (4) There is a need to insure that consumer reporting agencies exer-

  cise their grave responsibilities with fairness, impartiality, and a

  respect for the consumer’s right to privacy.

  (b) Reasonable procedures

  It is the purpose of this subchapter to require that consumer reporting

  agencies adopt reasonable procedures for meeting the needs of com-

  merce for consumer credit, personnel, insurance, and other informa-

  tion in a manner which is fair and equitable to the consumer, with

  regard to the confidentiality, accuracy, relevancy, and proper utiliza-

  tion of such information in accordance with the requirements of this

  subchapter.

  § 1681a. Definitions; Rules of Construction

  (a) Definitions and rules of construction set forth in this section are

  applicable for the purposes of this subchapter.

  (b) The term “person” means any individual, partnership, corporation,

  trust, estate, cooperative, association, government or governmental

  subdivision or agency, or other entity.

  (c) The term “consumer” means an individual.

  (d) Consumer Report.

  (1)

  In general: The term “consumer report” means any written, oral,

  or other communication of any information by a consumer

  reporting agency bearing on a consumer’s credit worthiness,

  credit standing, credit capacity, character, general reputa-

  tion, personal characteristics, or mode of living which is used

  or expected to be used or collected in whole or in part for the

  purpose of serving as a factor in establishing the consumer’s

  eligibility for

  (A) credit or insurance to be used primarily for personal,

  family, or household purposes;

  (B) employment purposes; or

  (C) any other purpose authorized under section 1681b of

  this title.

  (2)

  Exclusions: Except as provided in paragraph (3), the term “consumer report” does not include

  (A) subject to section 1681s–3 of this title, any—

  (i) report containing information solely as to transac-

  tions or experiences between the consumer and the

  person making the report;

  432

  Appendix D: Consumer and Credit Data Privacy Laws

  (ii) communication of that information among persons

  related by common owner
ship or affiliated by corpo-

  rate control; or

  (iii) communication of other information among per-

  sons related by common ownership or affiliated by

  corporate control, if it is clearly and conspicuously

  disclosed to the consumer that the information may

  be communicated among such persons and the con-

  sumer is given the opportunity, before the time that

  the information is initially communicated, to direct

  that such information not be communicated among

  such persons;

  (B) any authorization or approval of a specific extension of

  credit directly or indirectly by the issuer of a credit card or

  similar device;

  (C) any report in which a person who has been requested by a

  third party to make a specific extension of credit directly or

  indirectly to a consumer conveys his or her decision with

  respect to such request, if the third party advises the con-

  sumer of the name and address of the person to whom the

  request was made, and such person makes the disclosures to

  the consumer required under section 1681m of this title; or

  (D) a communication described in subsection (o) or (x) of this

  section.

  (3) Restriction on sharing of medical information—Except for

  information or any communication of information disclosed as

  provided in section 1681b (g)(3) of this title, the exclusions in

  paragraph (2) shall not apply with respect to information dis-

  closed to any person related by common ownership or affiliated

  by corporate control, if the information is—

  (A) medical information;

  (B) an individualized list or description based on the payment

  transactions of the consumer for medical products or ser-

  vices; or

  (C) an aggregate list of identified consumers based on payment

  transactions for medical products or services.

  (e) The term “investigative consumer report” means a consumer report

  or portion thereof in which information on a consumer’s charac-

  ter, general reputation, personal characteristics, or mode of living

  is obtained through personal interviews with neighbors, friends, or

  associates of the consumer reported on or with others with whom

  he is acquainted or who may have knowledge concerning any such

  Appendix D: Consumer and Credit Data Privacy Laws

  433

  items of information. However, such information shall not include

  specific factual information on a consumer’s credit record obtained

  directly from a creditor of the consumer or from a consumer report-

  ing agency when such information was obtained directly from a

  creditor of the consumer or from the consumer.

  (f) The term “consumer reporting agency” means any person which, for

  monetary fees, dues, or on a cooperative nonprofit basis, regularly

  engages in whole or in part in the practice of assembling or evaluat-

  ing consumer credit information or other information on consum-

  ers for the purpose of furnishing consumer reports to third parties,

  and which uses any means or facility of interstate commerce for the

  purpose of preparing or furnishing consumer reports.

  (g) The term “file,” when used in connection with information on any

  consumer, means all of the information on that consumer recorded

  and retained by a consumer reporting agency regardless of how the

  information is stored.

  (h) The term “employment purposes” when used in connection with a

  consumer report means a report used for the purpose of evaluating a

  consumer for employment, promotion, reassignment or retention as

  an employee.

  (i) Medical Information: The term “medical information”—

  (1) means information or data, whether oral or recorded, in any

  form or medium, created by or derived from a health care pro-

  vider or the consumer, that relates to—

  (A) the past, present, or future physical, mental, or behavioral

  health or condition of an individual;

  (B) the provision of health care to an individual; or

  (C) the payment for the provision of health care to an

  individual.

  (2) does not include the age or gender of a consumer, demographic

  information about the consumer, including a consumer’s resi-

  dence address or e-mail address, or any other information about

  a consumer that does not relate to the physical, mental, or behav-

  ioral health or condition of a consumer, including the existence

  or value of any insurance policy.

  (j) Definitions Relating to Child Support Obligations.

  (1)

  Overdue support: The term “overdue support” has the meaning given to such term in section 666 (e) of title 42.

  (2)

  State or local child support enforcement agency: The term “State or local child support enforcement agency” means a State or

  local agency which administers a State or local program for

  establishing and enforcing child support obligations.

  434

  Appendix D: Consumer and Credit Data Privacy Laws

  (k) Adverse Action.

  (1)

  Actions included: The term “adverse action”

  (A) has the same meaning as in section 1691 (d)(6) of this title;

  and

  (B) means

  (i) a denial or cancellation of, an increase in any charge

  for, or a reduction or other adverse or unfavorable

  change in the terms of coverage or amount of, any

  insurance, existing or applied for, in connection

  with the underwriting of insurance;

  (ii) a denial of employment or any other decision for

  employment purposes that adversely affects any cur-

  rent or prospective employee;

  (iii) a denial or cancellation of, an increase in any charge

  for, or any other adverse or unfavorable change in

  the terms of, any license or benefit described in

  section 1681b (a)(3)(D) of this title; and

  (iv) an action taken or determination that is

  (I) made in connection with an application that

  was made by, or a transaction that was initi-

  ated by, any consumer, or in connection with

  a review of an account under section 1681b (a)

  (3)(F)(ii) of this title; and

  (II) adverse to the interests of the consumer.

  (2)

  Applicable findings, decisions, commentary, and orders: For purposes of any determination of whether an action is an adverse

  action under paragraph (1)(A), all appropriate final findings, deci-

  sions, commentary, and orders issued under section 1691 (d)(6)

  of this title by the Board of Governors of the Federal Reserve

  System or any court shall apply.

  (l) Firm Offer of Credit or Insurance. The term “firm offer of credit or insurance” means any offer of credit or insurance to a consumer

  that will be honored if the consumer is determined, based on infor-

  mation in a consumer report on the consumer, to meet the specific

  criteria used to select the consumer for the offer, except that the offer may be further conditioned on one or more of the following:

  (1) The consumer being determined, based on information in the

  consumer’s application for the credit or insurance, to meet spe-

  cif
ic criteria bearing on credit worthiness or insurability, as

  applicable, that are established—

  (A) before selection of the consumer for the offer; and

  (B) for the purpose of determining whether to extend credit or

  insurance pursuant to the offer.

  Appendix D: Consumer and Credit Data Privacy Laws

  435

  (2) Verification

  (A) that the consumer continues to meet the specific criteria

  used to select the consumer for the offer, by using informa-

  tion in a consumer report on the consumer, information

  in the consumer’s application for the credit or insurance,

  or other information bearing on the credit worthiness or

  insurability of the consumer; or

  (B) of the information in the consumer’s application for the credit

  or insurance, to determine that the consumer meets the spe-

  cific criteria bearing on credit worthiness or insurability.

  (3) The consumer furnishing any collateral that is a requirement for

  the extension of the credit or insurance that was

  (A) established before selection of the consumer for the offer of

  credit or insurance; and

  (B) disclosed to the consumer in the offer of credit or insurance.

  (m) Credit or Insurance Transaction That Is Not Initiated by the

  Consumer. The term “credit or insurance transaction that is not

  initiated by the consumer” does not include the use of a consumer

  report by a person with which the consumer has an account or insur-

  ance policy, for purposes of

  (1) reviewing the account or insurance policy; or

  (2) collecting the account.

  (n) State. The term “State” means any State, the Commonwealth of

  Puerto Rico, the District of Columbia, and any territory or posses-

  sion of the United States.

  (o) Excluded Communications. A communication is described in this