Social Media: Consumer Compliance Risk Management Guidance, 76297-76305 [2013-30004]

Agencies

• Federal Financial Institutions Examination Council

[Federal Register Volume 78, Number 242 (Tuesday, December 17, 2013)]
[Notices]
[Pages 76297-76305]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-30004]


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FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL

[Docket No. FFIEC-2013-0002]


Social Media: Consumer Compliance Risk Management Guidance

AGENCY: Federal Financial Institutions Examination Council (FFIEC).

ACTION: Notice; final guidance.

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SUMMARY: The Federal Financial Institutions Examination Council 
(FFIEC), on behalf of its members, is issuing this final supervisory 
guidance entitled ``Social Media: Consumer Compliance Risk Management 
Guidance'' (Guidance). The Guidance is being published after 
consideration of comments received from the public. The Office of the 
Comptroller of the Currency (OCC); the Board of Governors of the 
Federal Reserve System (Board); the Federal Deposit Insurance 
Corporation (FDIC); the National Credit Union Administration (NCUA); 
and the Consumer Financial Protection Bureau (CFPB) (collectively, the 
Agencies) will use it as supervisory guidance for the institutions that 
they supervise, and the State Liaison Committee (SLC) of the FFIEC 
encourages state regulators to adopt the Guidance. Accordingly, 
financial institutions are expected to use the Guidance in their 
efforts to ensure that their policies and procedures provide oversight 
and controls commensurate with the risks posed by their involvement 
with social media.

DATES: Effective immediately.

FOR FURTHER INFORMATION CONTACT: 
    OCC: Eric Gott, Compliance Specialist, Office of the Comptroller of 
the Currency, 400 7th Street SW., Washington DC 20219, (202) 649-7181.
    Board: Lanette Meister, Senior Supervisory Consumer Financial 
Services Analyst, Board of Governors of the Federal Reserve System, 
20th and C Streets NW., Washington, DC 20551, (202) 452-2705.
    FDIC: Elizabeth Khalil, Senior Policy Analyst, Federal Deposit 
Insurance Corporation, 550 17th Street NW., Room F-6016, Washington, DC 
20429-0002, (202) 898-3534.
    NCUA: Robert J. Polcyn, Consumer Compliance Policy and Outreach 
Analyst, National Credit Union Administration, 1775 Duke Street, 
Alexandria, VA 22314, (703) 664-3916.
    CFPB: Edna Boateng, Senior Consumer Financial Protection Analyst, 
Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 
20552, (202) 435-7697.
    SLC: Matthew Lambert, Policy Counsel, Conference of State Bank 
Supervisors, 1129 20th Street NW., 9th Floor, Washington, DC 20036, 
(202) 407-7130.

SUPPLEMENTARY INFORMATION:

I. Background Information

    The FFIEC is publishing this Guidance to address the applicability 
of federal consumer protection and compliance laws, regulations, and 
policies to activities conducted via social media by banks, savings 
associations, and credit unions, as well as by nonbank entities 
supervised by the Consumer Financial Protection Bureau (CFPB) 
(collectively, financial institutions). The Guidance does not impose 
any new requirements on financial institutions. Rather, it is a guide 
to help financial institutions understand the applicability of existing 
requirements and supervisory expectations associated with the use of 
social media. Financial institutions are expected to manage risks 
associated with all types of consumer and customer communications, no 
matter the medium. The Guidance provides considerations that financial 
institutions may find useful in conducting risk assessments and 
crafting and evaluating policies and procedures regarding social media. 
Thus, rather than discouraging the use of social media or establishing 
any new obligations related to the use of this technology, the Guidance 
is intended to help financial institutions understand and successfully 
manage risks in this area.
    The six members of the FFIEC are the Office of the Comptroller of 
the Currency (OCC); the Board of Governors of the Federal Reserve 
System (Board); the Federal Deposit Insurance Corporation (FDIC); the 
National Credit Union Administration (NCUA); the Consumer Financial 
Protection Bureau (CFPB) (collectively, the Agencies); and the State 
Liaison Committee (SLC). As part of its mission, the FFIEC makes 
recommendations regarding supervisory matters and the adequacy of 
supervisory tools to the Agencies. The FFIEC also develops procedures 
for examinations of financial institutions that are used by the 
Agencies. The Agencies expect that all financial institutions they 
supervise will effectively assess and manage risks associated with 
activities conducted via social media. The Agencies and SLC will use 
this Guidance to the extent consistent with their respective 
authorities. After consideration of comments received from the public, 
the FFIEC is issuing this document on behalf of its members as guidance 
to the institutions that the member Agencies supervise. Accordingly, 
such institutions are expected to use the Guidance in their efforts to 
ensure that their risk management and consumer protection practices 
adequately address consumer compliance and legal risks, as well as 
related risks, such as reputation and operational risks, raised by 
activities conducted via social media. The SLC, which is composed of 
representatives of five state agencies that supervise financial 
institutions, was established to encourage the application of uniform 
examination principles and standards by state and federal supervisory 
agencies. The SLC encourages the adoption of the Guidance by state 
regulators. State agencies that adopt the Guidance will expect the 
entities that they regulate to use the Guidance in their efforts to 
ensure that their risk management and consumer protection practices 
adequately address the compliance and

[[Page 76298]]

reputation risks raised by activities conducted via social media.
    Social media has been defined in a number of ways. For purposes of 
the Guidance, social media is a form of interactive online 
communication in which users can generate and share content through 
text, images, audio, and/or video. Social media can take many forms, 
including, but not limited to, micro-blogging sites (e.g., Facebook, 
Google Plus, MySpace, and Twitter); forums, blogs, customer review Web 
sites and bulletin boards (e.g., Yelp); photo and video sites (e.g., 
Flickr and YouTube); sites that enable professional networking (e.g., 
LinkedIn); virtual worlds (e.g., Second Life); and social games (e.g., 
FarmVille and CityVille). Social media can be distinguished from other 
online media in that the communication tends to be more interactive. 
For purposes of this Guidance, messages sent via email or text message, 
standing alone, do not constitute social media, although such 
communications may be subject to a number of laws and regulations 
discussed in this Guidance. Social media is a dynamic and constantly 
evolving technology and thus any definition for this technology is 
meant to be illustrative and not exhaustive. In addition to the 
examples of social media mentioned above, other forms of social media 
may emerge in the future that financial institutions should also 
consider.
    Financial institutions may use social media in a variety of ways, 
including marketing, providing incentives, facilitating applications 
for new accounts, inviting feedback from the public, and engaging with 
existing and potential customers, for example, by receiving and 
responding to complaints, or providing loan pricing. Since this form of 
customer interaction tends to be both informal and dynamic, and may 
occur in a less secure environment, it can present some unique 
challenges to financial institutions.

II. Principal Elements of Guidance

    The use of social media by a financial institution to attract and 
interact with customers can impact a financial institution's risk 
profile. The increased risks can include the risk of harm to consumers, 
compliance and legal risk, operational risk, and reputation risk. 
Increased risk can arise from a variety of directions, including poor 
due diligence, oversight, or control on the part of the financial 
institution. This Guidance is meant to help financial institutions 
identify potential risk areas to appropriately address, as well as to 
ensure institutions are aware of their responsibilities to oversee and 
control these risks within their overall risk management program. The 
Agencies and the SLC recognize that the scope of social media 
activities vary by financial institution. Each institution is 
responsible for carrying out an appropriate risk assessment and 
maintaining a risk management program that is appropriate and tailored 
to the particular institution's size, activities, and risk profile.

III. Comments Received

    On January 23, 2013, the FFIEC issued proposed guidance in response 
to requests articulated to the Agencies by various participants in the 
industry for guidance regarding the application of consumer protection 
laws and regulations within the realm of social media. 78 FR 4848 (Jan. 
23, 2013). The FFIEC invited comments on any aspect of the proposal. In 
addition, the FFIEC specifically solicited comments in response to the 
following questions:
    1. Are there other types of social media, or ways in which 
financial institutions are using social media, that are not included in 
the proposed guidance but that should be included?
    2. Are there other consumer protection laws, regulations, policies 
or concerns that may be implicated by financial institutions' use of 
social media that are not discussed in the proposed guidance but that 
should be discussed?
    3. Are there any technological or other impediments to financial 
institutions' compliance with otherwise applicable laws, regulations, 
and policies when using social media of which the Agencies should be 
aware?
    The FFIEC received 81 official comments on the proposal. After 
consideration of all such comments, the FFIEC is issuing this final 
Guidance substantially as proposed, but with some changes. The changes 
are meant to provide further clarification of certain provisions, 
including those raised by commenters. For example, certain commenters 
expressed concerns that the proposed guidance appeared to be imposing, 
for all financial institutions, a single, ``one-size-fits-all'' 
approach to carrying out compliance and risk management 
responsibilities. The revised Guidance clarifies and points to the 
longstanding principle that financial institutions are expected to 
assess and manage the risks particular to the individual institution, 
taking into account factors such as the institution's size, complexity, 
activities, and third party relationships.
    A number of commenters also provided feedback on the appropriate 
definition of social media. For purposes of this final Guidance, 
traditional emails and text messages, standing alone, are not social 
media. However, messages sent through social media channels are social 
media. Further, the Guidance cautions financial institutions to ensure 
that they are aware of the laws and regulations that may apply to 
emails and text messages, some of which overlap with laws and 
regulations discussed in this Guidance as applicable to social media.
    Some commenters also requested further clarification regarding the 
application of certain specific laws and regulations to social media 
activities. The Guidance contains such further discussion in a number 
of sections on specific laws and regulations, such as the Community 
Reinvestment Act. Commenters also raised issues regarding employee use 
of social media. The Guidance does not require a particular approach to 
employee personal use of social media. This final Guidance clarifies 
that training and guidance should be provided to employees regarding 
official use of social media--that is, when employees communicate 
officially on behalf of the financial institution.
    In addition, commenters raised questions about regulators' 
expectations for risk management practices regarding third parties with 
which a financial institution does not have a traditional vendor 
relationship. Such third-party relationships can still pose risks, 
including reputation risks, to the financial institution. The final 
Guidance clarifies that a financial institution should conduct an 
evaluation of, and perform due diligence appropriate to, the risks 
posed by the prospective third party prior to engaging with it.
    Commenters also expressed concerns that this Guidance would require 
financial institutions to monitor all communications about the 
institution on Internet sites other than those maintained by or on 
behalf of the institution. This final Guidance clarifies that financial 
institutions are not expected to conduct such monitoring.
    Finally, some commenters questioned whether the Guidance implied 
that financial institutions are expected to treat all negative comments 
about the financial institution made on its proprietary social media 
sites as complaints and/or inquiries and process them accordingly. The 
final Guidance confirms that to the extent consistent with other 
applicable legal requirements, a financial institution may establish 
one or more specified channels that customers must use for submitting 
communications directly to

[[Page 76299]]

the institution. The Guidance also clarifies that financial 
institutions are not expected to monitor all Internet communications 
for complaints and inquiries about the institution. Rather, the 
financial institution should take into account the results of its own 
risk assessment in determining the appropriate approach to take 
regarding monitoring of, and any response to, such communications.

IV. Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act (PRA),\1\ an agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid Office 
of Management and Budget (OMB) control number. The Guidance does not 
involve any new collections of information pursuant to the PRA. 
Consequently, no information was submitted to the OMB for review.
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    \1\ 44 U.S.C. 3501 et seq.
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    The text of the interagency Social Media: Consumer Compliance Risk 
Management Guidance follows:

Social Media: Consumer Compliance Risk Management Guidance

I. Purpose

    The Federal Financial Institutions Examination Council (FFIEC), on 
behalf of its members, is issuing this Guidance. The members are the 
Office of the Comptroller of the Currency (OCC), the Board of Governors 
of the Federal Reserve System (Board), the Federal Deposit Insurance 
Corporation (FDIC), the National Credit Union Administration (NCUA), 
the Consumer Financial Protection Bureau (CFPB) (collectively, the 
Agencies), and the State Liaison Committee (SLC). The FFIEC is issuing, 
and the Agencies are adopting, this Guidance to address the 
applicability of existing federal consumer protection and compliance 
laws, regulations, and policies to activities conducted via social 
media by banks, savings associations, and credit unions, as well as by 
nonbank entities supervised by the CFPB (collectively, financial 
institutions). Various industry participants expressed a need for 
guidance in this area. The Agencies and SLC will use this Guidance to 
the extent consistent with their respective authorities.
    The Guidance is intended to help financial institutions understand 
potential consumer compliance and legal risks, as well as related 
risks, such as reputation and operational risks associated with the use 
of social media, along with expectations for managing those risks. The 
Guidance provides considerations that financial institutions may find 
useful in conducting risk assessments and crafting and evaluating 
policies and procedures regarding social media. Although this Guidance 
does not impose any new requirements on financial institutions, as with 
any process or product channel, financial institutions are expected to 
manage potential risks associated with social media usage and access.
    Financial institutions are using social media as a tool to generate 
new business and interact with consumers. Social media, as any new 
communication technology, has the potential to improve market 
efficiency. Social media may more broadly distribute information to 
users of financial services and may help users and providers find each 
other and match products and services to users' needs. To manage 
potential risks to financial institutions and consumers, however, 
financial institutions should ensure their risk management programs 
provide oversight and controls commensurate with the risks presented by 
the types of social media in which the financial institution is 
engaged, including, but not limited to, the risks outlined within this 
Guidance.

II. Background

    Social media has been defined in a number of ways. For purposes of 
this Guidance, social media is considered to be a form of interactive 
online communication in which users can generate and share content 
through text, images, audio, and/or video. Social media can take many 
forms, including, but not limited to, micro-blogging sites (e.g., 
Facebook, Google Plus, MySpace, and Twitter); forums, blogs, customer 
review Web sites and bulletin boards (e.g., Yelp); photo and video 
sites (e.g., Flickr and YouTube); sites that enable professional 
networking (e.g., LinkedIn); virtual worlds (e.g., Second Life); and 
social games (e.g., FarmVille and CityVille). Social media can be 
distinguished from other online media in that the communication tends 
to be more interactive. For purposes of this Guidance, messages sent 
via traditional email or text message, standing alone, do not 
constitute social media, although such communications may be subject to 
a number of laws and regulations discussed in this Guidance. However, 
messages sent through social media channels are social media. Social 
media is a dynamic and constantly evolving technology and thus any 
definition for this technology is meant to be illustrative and not 
exhaustive. In addition to the examples of social media mentioned 
above, other forms of social media may emerge in the future that 
financial institutions should also consider.
    Financial institutions may use social media in a variety of ways 
including advertising and marketing, providing incentives, facilitating 
applications for new accounts, inviting feedback from the public, and 
engaging with existing and potential customers, for example by 
receiving and responding to complaints, or providing loan pricing. 
Since this form of customer interaction tends to be both informal and 
dynamic, and may occur in a less secure environment, it can present 
some unique challenges to financial institutions.

III. Compliance Risk Management Expectations for Social Media

    A financial institution should have a risk management program that 
allows it to identify, measure, monitor, and control the risks related 
to social media. The size and complexity of the risk management program 
should be commensurate with the breadth of the financial institution's 
involvement in this medium. For instance, a financial institution that 
relies heavily on social media to attract and acquire new customers 
should have a more detailed program than one using social media only to 
a very limited extent. However, in accordance with its own risk 
assessment, a financial institution that has chosen not to use social 
media should still consider the potential for negative comments or 
complaints that may arise within the many social media platforms 
described above, and, when appropriate, evaluate what, if any, action 
it will take to monitor for such comments and/or respond to them.
    The risk management program should be designed with participation 
from specialists in compliance, technology, information security, 
legal, human resources, and marketing. Financial institutions should 
also provide guidance and training for employee official use of social 
media. Components of a risk management program should include the 
following:
     A governance structure with clear roles and 
responsibilities whereby the board of directors or senior management 
direct how using social media contributes to the strategic goals of the 
institution (for example, through increasing brand awareness, product 
advertising, or researching new customer bases) and establish controls 
and ongoing assessment of risk in social media activities;
     Policies and procedures (either stand-alone or 
incorporated into other policies and procedures) regarding the use and 
monitoring of social media and compliance with all applicable

[[Page 76300]]

consumer protection laws and regulations, and incorporation of guidance 
as appropriate. Further, policies and procedures should incorporate 
methodologies to address risks from online postings, edits, replies, 
and retention;
     A risk management process for selecting and managing 
third-party relationships in connection with social media;
     An employee training program that incorporates the 
institution's policies and procedures for official, work-related use of 
social media, and potentially for other uses of social media, including 
defining impermissible activities;
     An oversight process for monitoring information posted to 
proprietary social media sites administered by the financial 
institution or a contracted third party;
     Audit and compliance functions to ensure ongoing 
compliance with internal policies and all applicable laws and 
regulations, and incorporation of guidance as appropriate; and
     Parameters for providing appropriate reporting to the 
financial institution's board of directors or senior management that 
enable periodic evaluation of the effectiveness of the social media 
program and whether the program is achieving its stated objectives.

IV. Risk Areas

    The use of social media to attract and interact with customers can 
impact a financial institution's risk profile, including risk of harm 
to consumers, compliance and legal risks, operational risks, and 
reputation risks. Increased risk can arise from poor due diligence, 
oversight, or control on the part of the financial institution. As 
noted previously, this Guidance is meant to help financial institutions 
identify potential risks to ensure institutions are aware of their 
responsibilities to address risks within their overall risk management 
program.

Compliance and Legal Risks

    Compliance and legal risk arise from the potential for violations 
of, or nonconformance with, laws, rules, regulations, prescribed 
practices, internal policies and procedures, or ethical standards. 
These risks also arise in situations in which the financial 
institution's policies and procedures governing certain products or 
activities may not have kept pace with changes in the marketplace. This 
concern is particularly pertinent to an emerging medium like social 
media. Further, the potential for defamation or libel risk exists where 
there is broad distribution of information exchanges. Failure to 
adequately address these risks can expose an institution to enforcement 
actions and/or civil lawsuits.
    The laws and regulations discussed in this Guidance do not contain 
exceptions regarding the use of social media. Therefore, to the extent 
that a financial institution uses social media to engage in lending, 
deposit services, or payment activities, it must comply with applicable 
laws and regulations as when it engages in these activities through 
other media. Financial institutions should remain aware of developments 
involving such laws and regulations.
    The following laws and regulations may be relevant to a financial 
institution's social media activities. This list is not all-inclusive. 
Each financial institution should ensure that it periodically evaluates 
and controls its use of social media to ensure compliance with all 
applicable federal, state, and local laws and regulations, and 
incorporation of guidance, as appropriate.
Deposit and Lending Products
    Social media may be used to market products and originate new 
accounts. When used to do either, a financial institution is expected 
to take steps to ensure that advertising, account origination, and 
document retention are performed in compliance with applicable consumer 
protection and compliance laws and regulations. These measures may 
include, but are not limited to:
    Truth in Savings Act/Regulation DD and Part 707.\2\ The Truth in 
Savings Act (TISA), as implemented by Regulation DD, and, for credit 
unions, by Part 707 of the NCUA Rules and Regulations, imposes 
disclosure requirements designed to enable consumers to make informed 
decisions about deposit accounts. Regulation DD and Part 707 require 
disclosures about fees, annual percentage yield (APY), interest rate, 
and other terms. Under Regulation DD and Part 707, a depository 
institution may not advertise deposit accounts in a way that is 
misleading or inaccurate or misrepresents the depository institution's 
deposit contract.
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    \2\ 12 U.S.C. 4301 et seq., 12 CFR parts 230 and 1030 and 12 CFR 
part 707 (NCUA).
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    [cir] If an electronic advertisement displays a triggering term, 
such as ``bonus'' or ``APY,'' then Regulation DD and Part 707 require 
the advertisement to clearly state certain information, such as the 
minimum balance required to obtain the advertised APY or bonus. For 
example, an electronic advertisement can provide the required 
information via a link that directly takes the consumer to the 
additional information.
    Fair Lending Laws: Equal Credit Opportunity Act/Regulation B \3\ 
and Fair Housing Act.\4\ A financial institution should ensure that its 
use of social media does not violate fair lending laws and regulations.
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    \3\ 15 U.S.C. 1691 et seq., 12 CFR parts 202 and 1002 and 12 CFR 
701.31 (NCUA).
    \4\ 42 U.S.C. 3601 et seq., 24 CFR part 100 (HUD), 12 CFR part 
128 (OCC), 12 CFR part 390 subpart G (FDIC), 12 CFR 701.31 (NCUA).
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    [cir] The Equal Credit Opportunity Act, as implemented by 
Regulation B, prohibits creditors from making any oral or written 
statement, in advertising or other marketing techniques, to applicants 
or prospective applicants that would discourage on a prohibited basis a 
reasonable person from making or pursuing an application. However, a 
creditor may affirmatively solicit or encourage members of 
traditionally disadvantaged groups to apply for credit, especially 
groups that might not normally seek credit from that creditor.\5\
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    \5\ 12 CFR part 1002, Comment 4(b)-2.
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    [cir] Creditors must observe the time frames outlined under 
Regulation B for notifying applicants of the outcome of their 
applications or requesting additional information for incomplete 
applications, whether those applications are received via social media 
or through other channels.
    [cir] As with all prescreened solicitations, a creditor must 
preserve prescreened solicitations disseminated through social media, 
as well as the prescreening criteria, in accordance with Regulation 
B.\6\
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    \6\ 12 CFR 1002.12(b)(7).
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    [cir] When denying credit, a creditor must provide an adverse 
action notice detailing the specific reasons for the decision or 
notifying the applicant of his or her right to request the specific 
reasons for the decision.\7\ This requirement applies whether the 
information used to deny credit comes from social media or other 
sources.
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    \7\ 12 CFR 1002.9(a)(2).
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    [cir] It is also important to note that creditors may not, with 
limited exceptions, request certain information, such as information 
about an applicant's race, color, religion, national origin, or sex. 
Since social media platforms may collect such information about 
participants in various ways, a creditor should ensure that it is not 
requesting, collecting, or otherwise using such information in 
violation of applicable fair lending laws. Particularly if the social 
media platform is maintained by a third party that may request or 
require users to provide personal information such as age and/or sex or 
use data

[[Page 76301]]

mining technology to obtain such information from social media sites, 
the creditor should ensure that it does not itself improperly request, 
collect, or use such information or give the appearance of doing so.
    [cir] The Fair Housing Act (FHA), among other things, prohibits 
discrimination based on race, color, national origin, religion, sex, 
familial status, or handicap in the sale and rental of housing, in 
mortgage lending, and in appraisals of residential real property. In 
addition, the FHA makes it unlawful to advertise or make any statement 
that indicates a limitation or preference based on race, color, 
national origin, religion, sex, familial status, or handicap. This 
prohibition applies to all advertising media, including social media 
sites. For example, if a financial institution engages in residential 
mortgage lending and maintains a presence on Facebook, the Equal 
Housing Opportunity logo must be displayed on its Facebook page, as 
applicable.\8\
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    \8\ 12 CFR 128.4, 338.3, 390.145.
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    Truth in Lending Act/Regulation Z.\9\ Any social media 
communication in which a creditor advertises credit products must 
comply with Regulation Z's advertising provisions. Regulation Z broadly 
defines advertisements as any commercial messages that promote consumer 
credit; and the official commentary to Regulation Z states that the 
regulation's advertising rules apply to advertisements delivered 
electronically. In addition, Regulation Z is designed to promote the 
informed use of consumer credit by requiring disclosures about loan 
terms and costs. The disclosure requirements vary based on whether the 
credit is open-end or closed-end. Further, within those two broad 
categories, additional specific requirements apply to certain types of 
loans such as private education loans, home secured loans, and credit 
card accounts.
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    \9\ 15 U.S.C. 1601 et seq.; 12 CFR parts 226 and 1026.
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    [cir] Regulation Z requires that advertisements relating to credit 
present certain information in a clear and conspicuous manner. It 
includes requirements regarding the proper disclosure of the annual 
percentage rate and other loan features. If an advertisement for credit 
states specific credit terms, it must state only those terms that 
actually are or will be arranged or offered by the creditor.
    [cir] For electronic advertisements, such as those delivered via 
social media, Regulation Z permits providing the required information 
on a table or schedule that is located on a different page from the 
main advertisement if that table or schedule is clear and conspicuous 
and the advertisement clearly refers to the page or location.
    [cir] Regulation Z requires that, for consumer loan applications 
taken electronically, the financial institution must provide the 
consumer with all Regulation Z disclosures within the required time 
frames. Regulation Z does not exempt applications taken via social 
media.
    Real Estate Settlement Procedures Act. Section 8 of the Real Estate 
Settlement Procedures Act (RESPA) \10\ prohibits certain activities in 
connection with federally related mortgage loans. These prohibitions 
include fee splitting, as well as giving or accepting a fee, kickback, 
or thing of value in exchange for referrals of settlement service 
business. RESPA also has specific timing requirements for certain 
disclosures. These requirements apply to applications taken 
electronically, including via social media.
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    \10\ 12 U.S.C. 2607. See Interagency Guidance, Weblinking: 
Identifying Risks and Risk Management Techniques, 5, 7 (2003), 
available at https://www.occ.treas.gov/news-issuances/bulletins/2003/bulletin-2003-15a.pdf.
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    Fair Debt Collection Practices Act.\11\ The Fair Debt Collection 
Practices Act (FDCPA) restricts how debt collectors (generally defined 
as third parties collecting others' debts and entities collecting debts 
on their own behalf if they use a different name) may collect debts. 
The FDCPA generally prohibits debt collectors from publicly disclosing 
that a consumer owes a debt. Using social media to inappropriately 
contact consumers, or their families and friends, may violate the 
restrictions on contacting consumers imposed by the FDCPA. 
Communicating via social media in a manner that discloses the existence 
of a debt or to harass or embarrass consumers about their debts (e.g., 
a debt collector writing about a debt on a Facebook wall) or making 
false or misleading representations may violate the FDCPA.
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    \11\ 15 U.S.C. 1692-1692p.
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    Unfair, Deceptive, or Abusive Acts or Practices. Section 5 of the 
Federal Trade Commission (FTC) Act \12\ prohibits ``unfair or deceptive 
acts or practices in or affecting commerce.'' Sections 1031 and 1036 of 
the Dodd-Frank Wall Street Reform and Consumer Protection Act \13\ 
prohibit unfair, deceptive, or abusive acts or practices. An act or 
practice can be unfair, deceptive, or abusive despite technical 
compliance with other laws. A financial institution should not engage 
in any advertising or other practice via social media that could be 
deemed ``unfair,'' ``deceptive,'' or ``abusive.'' Of course, any 
determination as to whether an act or practice engaged in through 
social media is unfair, deceptive, or abusive, will necessarily be 
fact-specific. As with other forms of communication, a financial 
institution should ensure that information it communicates on social 
media sites is accurate, consistent with other information delivered 
through electronic media, and not misleading.\14\
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    \12\ 15 U.S.C. 45.
    \13\ 12 U.S.C. 5531, 5536.
    \14\ See FTC Guidance, including Guides Concerning the Use of 
Endorsements and Testimonials in Advertising, available at https://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf.
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    Deposit Insurance or Share Insurance. A number of requirements 
regarding FDIC or NCUA membership and deposit insurance or share 
insurance apply equally to advertising and other activities conducted 
via social media as they do in other contexts.
    [cir] Advertising and Notice of FDIC Membership.\15\ Whenever a 
depository institution advertises FDIC-insured products, regardless of 
delivery channel, the institution must include the official advertising 
statement of FDIC membership, usually worded, ``Member FDIC.'' An 
advertisement is defined as ``a commercial message, in any medium, that 
is designed to attract public attention or patronage to a product or 
business.'' The official advertisement statement must appear, even in a 
message that ``promotes nonspecific banking products and services, if 
it includes the name of the insured depository institution but does not 
list or describe particular products or services.'' Conversely, the 
advertising statement is not permitted if the advertisement relates 
solely to nondeposit products or hybrid products (products with both 
deposit and nondeposit features, such as sweep accounts).
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    \15\ 12 CFR part 328.
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    [cir] Advertising and Notice of NCUA Share Insurance.\16\ Each 
insured credit union must include the official advertising statement of 
NCUA membership, usually worded, ``Federally insured by NCUA'' in 
advertisements regardless of delivery channel, unless specifically 
exempted. An advertisement is defined as ``a commercial message, in any 
medium, that is designed to attract public attention or patronage to a 
product or business.'' The official advertising statement must be in a 
size and print that is clearly legible and may be no smaller than the 
smallest font size used

[[Page 76302]]

in other portions of the advertisement intended to convey information 
to the consumer. If the official sign is used as the official 
advertising statement, an insured credit union may alter the font size 
to ensure its legibility. Each insured credit union must display the 
official NCUA sign on its Internet page, if any, where it accepts 
deposits or opens accounts.
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    \16\ 12 CFR part 740.
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    [cir] Nondeposit Investment Products. As described in the 
``Interagency Statement on Retail Sales of Nondeposit Investment 
Products,'' \17\ when a depository institution recommends or sells 
nondeposit investment products to retail customers, it should ensure 
that customers are fully informed that the products are not insured by 
the FDIC or NCUA; are not deposits or other obligations of the 
institution and are not guaranteed by the institution; and are subject 
to investment risks, including possible loss of the principal invested.
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    \17\ Interagency Guidance, Retail Sales of Nondeposit Investment 
Products (Feb. 17, 1994).
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Payment Systems
    If social media is used to facilitate a consumer's use of payment 
systems, a financial institution should keep in mind the laws, 
regulations, and industry rules regarding payments that may apply, 
including those providing disclosure and other rights to consumers. 
Under existing law, no additional disclosure requirements apply simply 
because social media is involved (for instance, providing a portal 
through which consumers access their accounts at a financial 
institution). Rather, the financial institution should continue to be 
aware of the existing laws, regulations, guidance, and industry rules 
that apply to payment systems and evaluate which will apply. These may 
include the following:
    Electronic Fund Transfer Act/Regulation E.\18\ The Electronic Fund 
Transfer Act (EFTA) and its implementing Regulation E provide specific 
protections, including required disclosures and error resolution 
procedures, to individual consumers who engage in ``electronic fund 
transfers'' and ``remittance transfers.''
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    \18\ 15 U.S.C. 1693 et seq., 12 CFR parts 205 and 1005.
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    Rules Applicable to Check Transactions. When a payment occurs via a 
check-based transaction rather than an EFT, the transaction will be 
governed by applicable industry rules \19\ and/or Article 4 \20\ of the 
Uniform Commercial Code of the relevant state, as well as the Expedited 
Funds Availability Act, as implemented by Regulation CC \21\ (regarding 
the availability of funds and collection of checks).
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    \19\ See Operating Rules of the National Automated Clearing 
House Association (NACHA), available at https://www.achrulesonline.org/; Rules of the Electronic Check Clearinghouse 
Organization (ECCHO), available at https://www.eccho.org/cc/rules/Rules%20Summary-Mar%202012.pdf.
    \20\ UCC Art. 4.
    \21\ 12 CFR part 229.
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Bank Secrecy Act/Anti-Money Laundering Programs (BSA/AML)
    As required by the Bank Secrecy Act (BSA) \22\ and applicable 
regulations,\23\ depository institutions and certain other entities 
must have a compliance program that incorporates training from 
operational staff to the board of directors. Among other elements, the 
compliance program must include appropriate internal controls to ensure 
effective risk management and compliance with recordkeeping and 
reporting requirements under the BSA. Internal controls are the 
financial institution's policies, procedures, and processes designed to 
limit and control risks and to achieve compliance with the BSA. The 
level of sophistication of the internal controls should be commensurate 
with the size, structure, risks, and complexity of the financial 
institution. At a minimum, internal controls include but are not 
limited to: implementing an effective customer identification program; 
implementing risk-based customer due diligence policies, procedures, 
and processes; understanding expected customer activity; monitoring for 
unusual or suspicious transactions; and maintaining records of 
electronic funds transfers.
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    \22\ ``Bank Secrecy Act'' is the name that has come to be 
applied to the Currency and Foreign Transactions Reporting Act 
(Titles I and II of Pub. L. 91-508), its amendments, and the other 
statutes referring to the subject matter of that Act. These statutes 
are codified at 12 U.S.C. 1829b, 1951-1959; 31 U.S.C. 5311-5314, 
5316-5332; and notes thereto.
    \23\ Bank Secrecy Act regulations are found throughout 31 CFR 
Chapter X. Also, the federal banking agencies require institutions 
under their supervision to establish and maintain a BSA compliance 
program. See 12 CFR 21.21, 163.177 (OCC); 12 CFR 208.63, 211.5(m), 
211.24(j) (Board); 12 CFR 326.8, 390.354 (FDIC); 12 CFR 748.2 
(NCUA). See also Treas. Dep't Order 180-01 (Sept. 26, 2002).
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    An institution's BSA/AML program must provide for the following 
minimum components: A system of internal controls to ensure ongoing 
compliance, independent testing of BSA/AML compliance, a designated BSA 
compliance officer responsible for managing compliance, and training 
for appropriate personnel. These controls should apply to all 
customers, products and services, including customers engaging in 
electronic banking (e-banking) through the use of social media, and e-
banking products and services offered in the context of social media.
    Financial institutions should also be aware of emerging areas of 
BSA/AML risk in the virtual world. For example, illicit actors are 
increasingly using Internet games involving virtual economies, allowing 
gamers to cash out, as a way to launder money. Virtual world Internet 
games and digital currencies present a higher risk for money laundering 
and terrorist financing and should be monitored accordingly.
Community Reinvestment Act \24\
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    \24\ 12 U.S.C. 2901 et seq., 12 CFR parts 25, 195, 228, 345.
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    Under the regulations implementing the Community Reinvestment Act 
(CRA), a depository institution subject to the CRA must maintain a 
public file that includes, among other items, all written comments 
received from the public for the current year and each of the prior two 
calendar years that specifically relate to the institution's 
performance in helping to meet community credit needs. The institution 
must also include any response to those comments, as long as neither 
the comments nor the responses reflect adversely on the good name or 
reputation of any persons other than the institution, or publication of 
which would violate specific provisions of law. A depository 
institution subject to the CRA should ensure that its policies and 
procedures addressing public comments take into account such comments 
when they are received through social media sites run by or on behalf 
of the institution. However, under the CRA, comments about the 
institution made on the Internet through sites that are not run by or 
on behalf of the institution are not necessarily deemed to have been 
received by the depository institution and would not be required to be 
retained. Rather, the institution should retain comments made on sites 
run by or on behalf of the institution that specifically relate to the 
institution's performance in helping to meet community credit needs.
Privacy
    Privacy rules have particular relevance to social media when, for 
instance, a financial institution collects, or otherwise has access to, 
information from or about consumers. A financial institution should 
take into consideration the following laws and regulations regarding 
the privacy of consumer information:

[[Page 76303]]

    Gramm-Leach-Bliley Act Privacy Rules and Data Security 
Guidelines.\25\ Title V of the Gramm-Leach-Bliley Act (GLBA) 
establishes requirements relating to the privacy and security of 
consumer information. Whenever a financial institution collects, or 
otherwise has access to, information from or about consumers, it should 
evaluate whether these rules will apply. The rules have particular 
relevance to social media when, for instance, a financial institution 
integrates social media components into customers' online account 
experience or takes applications via social media portals.
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    \25\ 15 U.S.C. 6801 et seq., 12 CFR part 1016 (CFPB) and 16 CFR 
part 313 (FTC); Interagency Guidelines Establishing Information 
Security Standards, 12 CFR part 30, app. B and part 170, app. B 
(OCC); 12 CFR part 208, app. D-2 and part 225, app. F (Board); 12 
CFR part 364, app. B (FDIC); 12 CFR part 748, app. A & B (NCUA); 
Safeguards Rule, 16 CFR part 314 (FTC).
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    [cir] A financial institution using social media should clearly 
disclose its privacy policies as required under GLBA.
    [cir] Even when there is no ``consumer'' or ``customer'' 
relationship triggering GLBA requirements, a financial institution will 
likely face reputation risk if it appears to be treating any consumer 
information carelessly or if it appears to be less than transparent 
regarding the privacy policies that apply on one or more social media 
sites that the financial institution uses.
    CAN-SPAM Act \26\ and Telephone Consumer Protection Act.\27\ The 
Controlling the Assault of Non-Solicited Pornography and Marketing Act 
of 2003 (CAN-SPAM Act) and Telephone Consumer Protection Act (TCPA) may 
be relevant if a financial institution sends unsolicited communications 
to consumers via social media. The CAN-SPAM Act and TCPA, and their 
implementing rules,\28\ establish requirements for sending unsolicited 
commercial messages (``spam'') and unsolicited communications by 
telephone or short message service (SMS) text message, respectively. 
Financial institutions should be familiar with the provisions of the 
CAN-SPAM Act and TCPA to evaluate whether social media activities 
trigger the application of either or both laws.
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    \26\ 15 U.S.C. 7701 et seq.
    \27\ 47 U.S.C. 227.
    \28\ 16 CFR part 316 (FTC); 47 CFR parts 64 and 68 (FCC).
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    Children's Online Privacy Protection Act.\29\ The Children's Online 
Privacy Protection Act (COPPA) and the Federal Trade Commission's 
implementing regulation \30\ impose obligations on operators of 
commercial Web sites and online services directed to children younger 
than 13 that collect, use, or disclose personal information from 
children, as well as on operators of general audience Web sites or 
online services with actual knowledge that they are collecting, using, 
or disclosing personal information from children under 13. A financial 
institution should evaluate whether it, through its social media 
activities, could be covered by COPPA.
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    \29\ 15 U.S.C. 6501 et seq.
    \30\ 16 CFR part 312.
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    [cir] Certain social media platforms require users to attest that 
they are at least 13, and a financial institution using those sites may 
consider relying on such policies. However, the financial institution 
should still take care to monitor whether it is actually collecting any 
personal information of a person under 13, such as when a child under 
13 manages to post such information on the financial institution's 
site.
    [cir] A financial institution maintaining its own social media site 
(such as a virtual world) should be especially careful to establish, 
post, and follow policies restricting access to the site to users 13 or 
older, especially when those sites could attract children under 13. 
This may be true, for instance, in the case of virtual worlds and any 
other features that resemble video games.
    Fair Credit Reporting Act.\31\ The Fair Credit Reporting Act (FCRA) 
and its implementing regulations \32\ contain restrictions and 
requirements concerning making solicitations using eligibility 
information, responding to direct disputes, and collecting medical 
information in connection with loan eligibility. The FCRA applies when 
social media is used for these activities.
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    \31\ 15 U.S.C. 1681-1681u.
    \32\ 12 CFR part 1022 (CFPB); 12 CFR part 41 (OCC); 12 CFR part 
222 (Board); 12 CFR part 334 (FDIC); 12 CFR parts 717, 748 (NCUA).
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Reputation Risk

    Reputation risk is the risk arising from negative public opinion. 
Activities that result in dissatisfied consumers and/or negative 
publicity could harm the reputation and standing of the financial 
institution, even if the financial institution has not violated any 
law. Privacy and transparency issues, as well as other consumer 
protection concerns, arise in social media environments. Therefore, a 
financial institution engaged in social media activities is expected to 
be sensitive to, and properly manage, the reputation risks that arise 
from those activities. Reputation risk can arise in areas including the 
following:

Fraud and Brand Identity

    Financial institutions should be aware that protecting their brand 
identity in a social media context can be challenging. Risk may arise 
in many ways, such as through comments made by social media users, 
spoofs of institution communications, and activities in which 
fraudsters masquerade as the institution. Financial institutions should 
consider the use of social media monitoring tools and techniques to 
identify heightened risk, and respond appropriately. Financial 
institutions should have appropriate policies in place to monitor and 
address in a timely manner the fraudulent use of the financial 
institution's brand, such as through phishing or spoofing attacks.

Third Party Concerns \33\
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    \33\ 12 U.S.C. 1813(u). Guidance from the Agencies addressing 
third-party relationships is generally available on their respective 
Web sites. See, e.g., CFPB Bulletin 2012-03, Service Providers (Apr. 
13, 2012), available at https://files.consumerfinance.gov/f/201204_cfpb_bulletin_service-providers.pdf; FDIC FIL 44-2208, Managing 
Third-Party Risk (June 6, 2008), available at https://www.fdic.gov/news/news/financial/2008/fil08044a.html; NCUA Letter to Credit 
Unions 07-CU-13, Evaluating Third Party Relationships (Dec. 2007), 
available at https://www.ncua.gov/Resources/Documents/LCU2007-13.pdf; 
OCC Bulletin OCC 2013-29, Third-Party Relationships (Oct. 30, 2013), 
available at https://www.occ.gov/news-issuances/bulletins/2013/bulletin-2013-29.html; Interagency Guidance, Weblinking: Identifying 
Risks and Risk Management Techniques, (2003), available at https://www.occ.treas.gov/news-issuances/bulletins/2003/bulletin-2003-15a.pdf.; NCUA Letter to Credit Unions 03-CU-08, Weblinking: 
Identifying Risks & Risk Management Techniques (April 2003), 
available at https://ithandbook.ffiec.gov/media/resources/3315/ncu-03-cu-08_weblinking_tech.pdf.
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    Working with third parties to provide social media services can 
expose financial institutions to substantial reputation risk. A 
financial institution should regularly monitor the information it 
places on social media sites. This monitoring is the direct 
responsibility of the financial institution, as part of a sound 
compliance management system, even when such functions may be delegated 
to third parties. Even if a social media site is owned and maintained 
by a third party, consumers using the financial institution's part of 
that site may blame the financial institution for problems that occur 
on that site, such as uses of their personal information they did not 
expect or changes to policies that are unclear. The financial 
institution's ability to control content on a site owned or 
administered by a third party and to change policies regarding 
information provided through the site may vary depending on the 
particular site and the contractual arrangement with the third party. A 
financial

[[Page 76304]]

institution should thus weigh these issues against the benefits of 
using a third party to conduct social media activities.
    A financial institution should conduct an evaluation and perform 
due diligence appropriate to the risks posed by the prospective service 
provider prior to engaging with the provider. To understand the risks 
that may arise from a relationship with a given third party, the 
institution should be aware of matters such as the third party's 
reputation in the marketplace; the third party's policies, including 
policies on collection and handling of consumer information, including 
the information of the institution's customers; the process and 
frequency by which the third party's policies may change; and what, if 
any, control the institution may have over the third party's policies 
or actions.

Privacy Concerns

    Even when a financial institution complies with applicable privacy 
laws in its social media activities, it should consider the potential 
reaction by the public to any use of consumer information via social 
media. The financial institution should have procedures to address 
risks from occurrences such as members of the public posting 
confidential or sensitive information--for example, account numbers--on 
the financial institution's social media page or site.

Consumer Complaints and Inquiries

    Although a financial institution can take advantage of the public 
nature of social media to address customer complaints and questions, 
reputation risks exist when the financial institution does not address 
consumer questions or complaints in a timely or appropriate manner. 
Further, the participatory nature of social media can expose a 
financial institution to reputation risks that may arise when users 
post critical or inaccurate statements. Compliance risk can also arise 
when a customer uses social media to communicate issues or concerns 
directly with a financial institution, such as an error dispute under 
Regulation E, a billing error under Regulation Z, or a direct dispute 
about information furnished to a consumer reporting agency under FCRA 
and its implementing regulations.
    This Guidance does not require financial institutions to monitor 
and respond to all Internet communications; however, a financial 
institution is expected to take into account the results of its own 
risk assessments in determining the appropriate approach to take 
regarding monitoring of, and responding to, such communications. 
Appropriate steps may include, for example, establishing one or more 
specific channels consumers must use when submitting complaints or 
disputes directly to the institution for further investigation, to the 
extent consistent with other applicable legal requirements. However, 
the institution should also consider the risks, particularly the 
reputation risk, inherent in not responding to complaints and disputes 
received through other channels and tailor its policies and procedures 
accordingly, in a manner appropriate to the institution's size and risk 
profile.
    Based on its own risk assessment processes, a financial institution 
should also consider whether and how to respond to communications 
disparaging the financial institution on other parties' social media 
sites. One approach to managing these risks would be to monitor 
question and complaint forums on social media sites to ensure that such 
inquiries, complaints, or comments are reviewed, and when appropriate, 
addressed in a timely manner.

Employee Use of Social Media Sites

    Financial institutions should be aware that employees' 
communications via social media may be viewed by the public as 
reflecting the financial institution's official policies or may 
otherwise reflect poorly on the financial institution, depending on the 
form and content of the communications. Employee communications can 
also subject the financial institution to compliance risk, operational 
risk, as well as reputation risk. Therefore, as appropriate, financial 
institutions should take steps to address these risks, such as 
establishing policies and training to address employee participation in 
social media representing the financial institution. For example, if an 
employee is communicating with a customer regarding a loan product 
through an approved social media channel, policies should include steps 
to ensure the customer is receiving all of the required disclosures. 
This Guidance does not address any employment law principles that may 
be relevant to employee use of social media. In addition, the Guidance 
is not intended to impose any specific requirements for policies or 
procedures regarding employee personal use of social media. Each 
financial institution should evaluate the risks for itself and 
determine appropriate policies to adopt in light of those risks.

Operational Risk

    Operational risk is the risk of loss resulting from inadequate or 
failed processes, people, or systems. The root cause can be either 
internal or external events.\34\ Operational risk includes the risks 
posed by a financial institution's use of information technology (IT), 
which encompasses social media.
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    \34\ FFIEC IT Examination Handbook: Management booklet, 2-3 
(June 2004), available at https://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_Management.pdf.
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    The identification, monitoring, and management of IT-related risks 
are addressed in the FFIEC Information Technology Examination 
Handbook,\35\ as well as other supervisory guidance issued by the FFIEC 
or individual agencies.\36\ A financial institution should pay 
particular attention to the booklets ``Outsourcing Technology 
Services'' \37\ and ``Information Security'' \38\ when using social 
media, and include social media in existing risk assessment and 
management programs.
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    \35\ Available at https://ithandbook.ffiec.gov/it-booklets.aspx.
    \36\ FFIEC InfoBase at https://ithandbook.ffiec.gov.
    \37\ Available at https://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_OutsourcingTechnologyServices.pdf.
    \38\ Available at https://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf.
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    Social media is one of several platforms vulnerable to account 
takeover and the distribution of malware. A financial institution 
should ensure that the controls it implements to protect its systems 
and safeguard customer information from malicious software adequately 
address social media usage. Financial institutions' incident response 
protocol regarding a security event, such as a data breach or account 
takeover, should include social media, as appropriate.

Conclusion

    As noted previously, this Guidance is intended to help financial 
institutions understand and successfully manage the risks associated 
with use of social media. Financial institutions are using social media 
as a tool to generate new business and provide a dynamic environment to 
interact with consumers. As with any product channel, financial 
institutions are expected to manage potential risks to the financial 
institution and consumers by ensuring that their risk management 
programs provide appropriate oversight and control to address the risk 
areas discussed within this Guidance.

    Dated: December 12, 2013.


[[Page 76305]]


    Federal Financial Institutions Examination Council.
Judith E. Dupre,
FFIEC Executive Secretary.
[FR Doc. 2013-30004 Filed 12-16-13; 8:45 am]
BILLING CODE 7535-01-P; 6714-01-P; 6210-01-P; 4810-33-P; 4810-AM-P