In Anenkova v. Van Ru Credit Corporation, 2016 WL 4379296, at *5–7 (E.D.Pa., 2016), Judge Savage recognized that he was bound by Douglass, but nevertheless recognized a benign language exception and found that a debt collector’s disclosure of a bar code did not violate the FDCPA.
Having recognized a benign language exception, we turn to whether the exception applies to the barcode in this case. The key inquiry is whether the scanned barcode implicates the privacy concerns of § 1692f(8). Anenkova argues that it does. Without offering any evidence to show how the barcode is “capable” of identifying her as a debtor, she speculates that it does. She contends that in the wake of Douglass, district courts in the Third Circuit have uniformly applied Douglass to prohibit barcodes that, when scanned, reveal “a sequence linked to addressee’s account information.” Her characterization of what Douglass prohibits is broader than what Douglass held. Douglass does not prohibit the use of all barcodes. Only those barcodes or QR codes, visible to the public, that disclose that the communication is a debt collection effort and exposes the debtor’s financial predicament and personal identifying information violate § 1692f(8). Douglass found that the disclosure of the debtor’s account number on the envelope implicated “a core concern animating the FDCPA—the invasion of privacy.” Douglass, 765 F.3d at 303. The account number revealed that the addressee was a debtor and the letter was a debt collection effort. Thus, the court concluded it was not benign. Id. at 303-04. This case is distinguishable from Douglass. First, in Douglass, the plaintiff’s account number and a QR code that contained the account number were visible through a glassine window. Anenkova’s account number with Van Ru is not embedded in the barcode. Nor is it visible upon inspection of the envelope. Second, in Douglass, the account number “could be used to expose [the debtor’s] financial predicament.” Douglass, 765 F.3d at 303. Anenkova does not provide any realistic scenario, nor do we discern any, where the barcode could be used by a third party to learn any information about her or her financial condition. The barcode contains a unique tracking number used by RevSpring to identify returned mail. It does not contain Anenkova’s account number maintained by Van Ru or her personal identifying information. It does not identify her as a debtor nor refer to a debt. When scanned, the barcode reveals a twenty-five digit sequence of numbers. The first five digits are RevSpring’s identification number for Van Ru. The following group of eight digits is a unique “identifier” for the particular piece of mail. Although the significance of this identifier is disputed, the parties agree that it corresponds to where the particular mailing resides in RevSpring’s, not Van Ru’s, data file. The last group, consisting of twelve digits, reflects the date and the time that RevSpring begins processing Van Ru’s mail request. Van Ru’s assigned account number is not embedded in the twenty-five-digit barcode created by RevSpring. The information is useless to Van Ru. Assuming that one could decipher the components of the twenty-five digit code, no prohibited information would be revealed. The unique identifier, generated and used by RevSpring to locate the returned mail in its data file, does not communicate anything to a third party. Without a RevSpring insider’s cooperation, a third party could not correlate RevSpring’s number with the account number Van Ru assigned to Anenkova. In an attempt to create a disputed material fact, Anenkova claims that “the barcode is generated based on the position of Plaintiff’s record within Defendant’s files.” Van Ru did not have access to RevSpring’s data file. Van Ru’s corporate designee, Michael Martin, did not know what the data file contained or if it was Van Ru’s. RevSpring confirmed that its “internal database” is used to identify returned mail. To get around this lack of connection, Anenkova argues that RevSpring is Van Ru’s agent. As such, its actions are attributable to Van Ru.26 This argument does not show how one deciphering the barcode could link it to the account number at Van Ru. Even if Van Ru also had the data file, it is immaterial. One who successfully decoded the barcode still could not learn that the information related to a debt collection matter. The tracking number utilized by Van Ru’s mail vendor could not be used by anyone to reveal that it pertains to a debt or the debtor’s personal information. Indeed, even Van Ru could not decipher the code. RevSpring’s eight-digit identifier does not resemble Van Ru’s account number for Anenkova. Nor is it created using Anenkova’s account number. Anenkova claims that “nefarious third parties” could use the barcode to expose her private information, including her name, address, account numbers, balance breakdown, creditor identification, and pin numbers. She claims Van Ru regularly communicated this information to RevSpring in order to generate the collection letters. Anenkova argues that the barcode was “linked” to her private information because RevSpring generated each barcode based on the position of a “record” in its “data file.” But, she does not explain how this connection could be made without someone hacking into RevSpring’s computer system or illegally obtaining information from a RevSpring employee. Counsel also suggested that Anenkova’s information could be disclosed if RevSpring went out of business and sold its computers to a third party without deleting private information. In these scenarios, the third party would not need the information embedded in the barcode to get it. The third party would be in the system and would not need a barcode. Nor can the barcode provide a gateway into the system. The barcode sequence did not identify the purpose of the communication or disclose Anenkova’s financial status. Instead, it correlated Anenkova’s letter to RevSpring’s mailing record. It simply tracked a piece of mail. Although the sequence of numbers communicated something to RevSpring, it did not implicate Anenkova’s privacy concerns. In short, the barcode did not reveal Anenkova’s private information or impart that the mailing was a collection effort. The barcode on Anenkova’s letter was not a core piece of information related to her status as a debtor. Rather, it was information created by a mail vendor to process returned mail. It served a legitimate purpose and did not implicate the FDCPA’s purpose to prohibit abusive debt collection practices and to protect the debtor’s privacy. It was benign.