More recently than you might think, humans branded other humans’ flesh. In Canadian military prisons, officials apparently branded some prisoners with “BC,” standing for “bad character.” (We would have thought the good people of British Columbia would have strongly objected to that brand.)
Obviously, we now think of ourselves as living in a far more enlightened time and such practices are widely regarded as abhorrent.
But now, in our era, we encounter a new kind of human branding, stigmatizing certain people through what we will brand “data branding.”
That is, enormously powerful companies amass staggering amounts of data on all of us and, for some unlucky people, the data, whether fairly or unfairly, is digitally burned into their very identity, with potentially permanent consequences.
This comes to mind in reviewing the putative class action complaint by Mr. Don Piche, Jr. against a company called Chex Systems, Inc., which provides information about consumers to some 9,000 banking institutions with 100,000 bank branches — allegedly about 80% of U.S. bank branches.
Apparently, Mr. Piche has run into challenges opening bank accounts because of a Chex flag for “suspected fraud activity.”
According to Mr. Piche’s complaint, Chex practices “provide for reporting of suspected fraud activity without any provision to verify the fraud. (Complaint at Para. 51.)
In a nutshell, Mr. Piche appears to be arguing that Chex disseminates claims of “suspected fraud activity” without sufficient policies, procedures, or practices safeguard against false claims. Therefore, Piche’s position is that Chex violates the Fair Credit Reporting Act which requires credit reporting agencies to have “reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”
Plaintiff’s counsel defines their putative class like this:
The Reasonable Procedures Class consists of all natural persons residing in the United States (including all territories and other political subdivisions of the United States): (a) who were the subject of a report sold by Chex Systems to a third party; (b) that was furnished to a user of Chex Systems; (c) that contained a negative account rating of “suspected fraud activity;” (d) within five years next preceding the filing of this action and during its pendency. Excluded from the class definition are any employees, officers, directors of Defendant, any attorney appearing in this case, and any judge assigned to hear this action.
Happen to notice a glaring omission?
Nowhere in his complaint does Mr. Piche deny that he had, in fact, engaged in “fraud activity.” On a related point, the putative class would include all people who had, in fact, engaged in “fraud activity” and who were accurately flagged over the past 5 years.
We will see whether this and other potential problems will be fatal to Plaintiff’s putative class action but, of equal interest to us, is the fact that, even if the “data brand” were accurately applied, even if someone had involvement in “suspect fraud activity” at some point in her life, is that something that our society should allow to become a life-long bank ban?