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SEC Proposes Financial Privacy Regulation
Washington, DC, March 6, 2000 - The Securities and Exchange Commission issued a new proposed regulation, Regulation S-P, that contains privacy rules mandated by the Gramm-Leach-Bliley Act. Comments on the proposal are due on March 31, 2000. If adopted, new Regulation S-P would take effect on November 13, 2000, six months after final rules are required by the Act to be adopted. The Commission has also requested comment on whether six months after adoption of final rules is sufficient time to enable financial institutions to comply with the rules.
As required by the Gramm-Leach-Bliley Act, proposed Regulation S-P generally requires every broker-dealer, investment company, and investment adviser to:
- provide each of its customers with a notice of its privacy policies and practices at the time of establishing the customer relationship (the initial notice) and annually thereafter (the annual notice);
- provide each of its consumers (who have not yet become customers) with an initial notice before disclosing nonpublic personal information about that consumer to a nonaffiliated third party;
- refrain from sharing nonpublic personal information about a consumer with a nonaffiliated third party unless the institution has provided the consumer with an initial notice and an additional notice describing that practice and the consumer’s right to prevent it (the opt-out notice); and
- adopt policies and procedures reasonably designed to: (a) ensure the security and confidentiality of customer records and information; (b) protect against any anticipated threats or hazards to the security or integrity of customer records and information; and (c) protect against unauthorized access to or use of customer records or information that could result in substantial harm or inconvenience to any customer.
The Gramm-Leach-Bliley Act requires the federal financial regulators, including the SEC, to adopt regulations implementing its provisions no later than May 12, 2000. Other federal financial regulators issued privacy rules proposals in late February.
The Use of Examples in Proposed Regulation S-P
Proposed Regulation S-P contains rules of general applicability followed by examples that illustrate the application of the general rules. These examples differ in substance from those used by the other federal financial regulators in their rule proposals, in an attempt to provide more meaningful guidance to the financial institutions subject to the Commission’s jurisdiction. The examples also differ from the other regulators’ proposals in terms of legal effect, in that compliance with the examples in proposed Regulation S-P would not necessarily constitute compliance with the applicable rule. In the other proposals, compliance with the examples would be considered a safe harbor.
The Commission has requested comment on whether including examples in the rule is useful, and suggestions on additional or different examples that may be helpful in providing guidance as to the applicability of the rule.
Initial and Annual Privacy Notices
Initial notices. The Gramm-Leach-Bliley Act requires a financial institution to provide an initial notice of its privacy policies and practices in two circumstances. For customers, the notice must be provided at the time of establishing a customer relationship. For consumers who do not (or have not yet) become customers, the notice must be provided before disclosing nonpublic personal information about the consumer to a nonaffiliated third party.
Proposed regulation S-P requires every financial institution to provide these notices in a manner that is "clear and conspicuous," that accurately reflects the institution’s privacy policies and practices, and that is provided so that each recipient can reasonably be expected to receive actual notice. The proposed rules do not prohibit two or more institutions from providing a joint initial, annual, or opt-out notice, as long as the notice is delivered in accordance with the rule and is accurate for all recipients. For example, an investment company and a broker-dealer that distributes its shares would be permitted, but not required, to provide a joint notice.
The initial notice must be provided to the customer prior to the time that the financial institution and the customer establish a customer relationship. The proposed rules define a customer relationship to be established at the point at which the financial institution and the consumer enter into a continuing relationship. For example, when a consumer purchases investment company shares (in his or her own name) through a principal underwriter, the consumer establishes a customer relationship with the underwriter and the investment company.
For a consumer who has not established a customer relationship with the financial institution, the initial notice may be provided at any point before the financial institution discloses nonpublic personal information about that consumer to nonaffiliated third parties.
Annual notices. The Gramm-Leach-Bliley Act requires a financial institution to provide notices of its privacy policies and practices at least annually to its customers. The proposed rules implement this requirement by requiring a clear and conspicuous notice that accurately reflects the current privacy policies and practices to be provided at least once during any period of twelve consecutive months. The rules governing how to provide an initial notice also apply to annual notices.
Opt-out Rights and Opt-out Notices
The Gramm-Leach-Bliley Act generally prohibits a financial institution from sharing nonpublic personal information about a consumer with a nonaffiliated third party unless the institution has provided the consumer with an initial privacy notice (as described above) and a clear and conspicuous opt-out notice.
The opt-out notice must inform the consumer that the institution may disclose nonpublic personal information to nonaffiliated third parties, state that the consumer has a right to opt out, and provide the consumer with a reasonable means by which to opt out. As with the initial and annual privacy notices, the opt-out notice must be provided so that each recipient can reasonably be expected to receive actual notice in writing or, if the consumer agrees, in electronic form.
The consumer’s right to opt out is limited by several exceptions enumerated in the Gramm-Leach-Bliley Act. One of these provides an exception for the disclosure of a consumer’s nonpublic personal information to a nonaffiliated third party for its use to perform services for, or functions on behalf of, the financial institution, including marketing the financial institution’s own products or services or financial products or services offered under a joint agreement between two or more financial institutions. To avail itself of this exception, the financial institution must:
- fully disclose to the consumer that it will provide this information to the nonaffiliated third party before the information is shared and
- enter into a contract with the third party that requires the third party to maintain the confidentiality of the information.
Several other exceptions in the Gramm-Leach-Bliley Act are for disclosures made, generally speaking, in connection with the administration, processing, servicing and sale of a consumer’s account. Proposed Regulation S-P substantively reiterates these exceptions, making only stylistic changes to the statutory text that are intended to make the exceptions easier to read.
Procedures to Safeguard Customer Information and Records
The Gramm-Leach-Bliley Act directs the Commission (and the other federal financial regulators) to establish appropriate standards for financial institutions relating to administrative, technical and physical safeguards to protect customer records and information. Proposed Regulation S-P implements this provision by requiring every broker, dealer, investment company, and registered investment adviser to adopt policies and procedures reasonably designed to: (i) insure the security and confidentiality of customer records and information; (ii) protect against any anticipated threats or hazards to the security or integrity of customer records and information; and (iii) protect against unauthorized access to or use of customer records or information that could result in substantial harm or inconvenience to any customer. This approach follows a suggestion made by the Institute prior to the rulemaking
"Consumer," "customer" and "customer relationship." Consistent with the Gramm-Leach-Bliley Act, proposed Regulation S-P draws a distinction between "consumers" and "customers." The proposed rules define "consumer" to mean an individual who obtains, from a financial institution, financial products or services that are to be used primarily for personal, family, or household purposes. A "customer" is a consumer who has a customer relationship with a particular financial institution.
The examples in the proposed rule make clear that an investor that purchases shares of an investment company in his or her own name would be a customer of that investment company. This is true even if the consumer purchased those shares through a broker or investment adviser. In that case, the individual will be a customer of both the broker or investment adviser who sold the shares and the investment company. Conversely, if the shares are not held in the name of the investor (e.g., if they are held in street name or in an omnibus account) the investor would be neither a consumer nor a customer of the investment company.
"Nonpublic personal information" and "nonpublic personal financial information." The Gramm-Leach-Bliley Act defines "nonpublic personal information" to mean "personally identifiable financial information"(which the Gramm-Leach-Bliley Act does not define) that (i) is provided by a consumer to a financial institution, (ii) results from any transaction with the consumer or any service performed for the consumer, or (iii) is otherwise obtained by the financial institution. "Nonpublic personal information" also includes any list, description, or other grouping of consumers—and "publicly available information" pertaining to them—that is derived using any nonpublic personal information. The proposed rules implement this provision of the Gramm-Leach-Bliley Act by restating the general categories of information described above and providing that "nonpublic personal information" does not include publicly available information when the information is part of a list, description, or other grouping of consumers that is derived without using personally identifiable financial information. The definition in the proposed rules also excludes any other publicly available information, unless the information is part of a list, description, or other grouping of consumers that is derived using personally identifiable financial information.
As a general matter, the proposed rules treat any personally identifiable information as financial if the financial institution obtains the information in connection with providing a financial product or service to a consumer. This interpretation would cover a broad range of personal information provided to a financial institution, including, for example, information about the consumer’s health.
"Publicly available information." The proposed rules define "publicly available information" as information that the financial institution reasonably believes is lawfully made available to members of the general public from official public records, widely distributed media, or disclosures required to be made to the general public by federal, State, or local law. The proposed rules treat information as publicly available if it could be obtained from one of these three public sources, whether or not the institution actually obtains the information from such a source.