CTFC Proposes New Rules for Consumer Privacy Protection

On October 27, 2010, the U.S. Commodity Futures Trading Commission (the “CFTC”) issued two notices of proposed rulemaking (“NPRMs”), citing Gramm-Leach-Bliley Act (“GLBA”) privacy rules, and marketing and data disposal rules of the Fair Credit Report Act (“FCRA”).

The proposed rules come in the wake of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which places two new categories of covered entities (i.e., “swap dealers” and “major swap participants”) under the CFTC’s jurisdiction.  Under the proposals, those entities would be subject to certain GLBA privacy rules that regulate the treatment of consumers’ nonpublic personal information, and sections of the FCRA that address affiliate marketing and data disposal.

Under the proposed marketing rule, CFTC-regulated entities that receive consumer “eligibility information” from an affiliate must not market to consumers unless the consumers are (1) notified in advance about the marketing, and (2) have a reasonable opportunity to opt-out.

The proposed disposal rule would require relevant entities to create and employ written policies and procedures regarding the proper safeguarding and disposal of consumer information they possess or maintain.

Comments from the public must be received by December 27, 2010, and the CFTC has proposed an effective date of July 21, 2011.

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