2d Cir. Says Thomson-Reuters’ CLEAR Program Was Not Subject to FCRA Because They Did Not Intend It to Be

In Kidd v. Thomson Reuters Corp., No. 17-3550, 2019 U.S. App. LEXIS 16091 (2d Cir. May 30, 2019), the Court of Appeals for the Second Circuit held that CLEAR was not subject to the FCRA because it required users to certify that the information provided would not be used for the purposes regulated by FCRA.

At each gateway to the CLEAR platform, Thomson Reuters instructed users and potential subscribers that the platform was not to be used for FCRA purposes and required them to affirm [*18]  their understanding of that restriction. Marketing material sent to prospective subscribers explained that CLEAR is meant to be used for law enforcement, fraud prevention, and identity verification (non-FCRA) purposes only,11 and when potential subscribers apply for access to the platform, Thomson Reuters requires them to indicate how they intend to use CLEAR to ensure compliance with the company’s restrictions. When a Thomson Reuters employee suspects an applicant of misrepresenting its reasons, the applicant’s application will be reviewed again by a special Thomson Reuters committee established for that purpose. If a customer is granted access to the platform, she is required to sign a contract promising to not use CLEAR in a manner prohibited by Thomson Reuters. Thomson Reuters also periodically requires its CLEAR subscribers to reaffirm that commitment, and each time a user enters a search she must affirm her reason for using CLEAR complies with Thomson Reuters’ requirements. In the event these controls fail, Thomson Reuters also employs additional measures to prevent further misuse of the CLEAR platform. If its compliance office determines a user has used CLEAR for an FCRA purpose [*19]  it will “remind[] the subscriber that FCRA use of CLEAR is prohibited and requires the subscriber to provide a written ‘attestation’ of its authorized uses of CLEAR and its intent to enforce the subscriber’s contractual obligation not to use CLEAR for any FCRA purpose.” App’x at 146. These numerous, undisputed controls are sufficient to establish at summary judgment that Thomson Reuters aimed to prevent users from putting CLEAR reports to uses covered by the FCRA. This negates any inferences that Thomson Reuters intended to provide reports for FCRA purposes. Hence, the reports it provided do not qualify as “consumer reports.”