Your Collection Agent Wants to be Friends With You on Facebook

By now most have been warned of the dangers of posting sensitive or private information on social network sites. But this past Monday, July 12, 2010, National Public Radio (NPR) ran a story detailing the latest risk faced by users of Facebook, MySpace, LinkedIn, and the like. Collection agencies are using social networking sites to track down debtors. One credit agency attorney admits his employees will search for debtors, “friend” or “connect” with them if necessary to gain more information, and even go so far as to talk to the debtor and his friends to learn of the debtor’s assets.

Creditors can use Facebook to find hiding debtors.

The NPR article questions the legality of these practices, citing an e-mail response from the Federal Trade Commission (FTC) implying that they may violate the Fair Debt Collections Practices Act (FDCPA). But do they?

Section 807 of the FDCPA proscribes debt collectors from using “false, deceptive, or misleading representation or means in connection with the collection of any debt.”

The statute then provides a non-exhaustive list of “representation[s]” and “means” which violate § 807. The FTC e-mail cites § 807(11), which requires the debt collector to disclose in the “initial written communication” with the debtor that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose. Further, in all subsequent communications the collection agent must express that she is a debt collector.

Merely viewing the debtor’s profile page would not seem to violate the act. But it gets murkier if the debtor’s security settings require the collection agent to request to be friends before the collector can view any information from the debtor’s profile. Is a friend request or connection request an “initial written communication?” If the debt collector does not add a message to the friend request, arguably the answer is no. The collector has done nothing more invasive than calling the debtor’s home phone and remaining silent when the debtor answers the phone — which is arguably not a communication at all. And if the debtor then fails to hang up, presses the speaker button, and tells his buddy about his new boat, the collection agent knows of a new asset, quite possibly all while following the rules of the FDCPA.

If the collector actually messages the debtor, § 807(11) almost certainly requires the collector disclose her purpose. But nothing within the text of the FDCPA would stop her from friend-requesting the debtor’s Facebook friends, and then asking them about the debtor’s assets. And if they are naive enough, or perhaps willing to cooperate, the debtor could be pursued.

Bottom line, this should produce some interesting litigation in the future. And if you are a rapscallion, as the protagonist in the NPR piece claims himself to be, you have been warned.

– Joe Cesta

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