Collection Agencies and Facebook: What Do You Think?

When the Fair Debt Collections Practices Act was written back in 1978 (number one song, Night Fever, number one movie, The Deer Hunter), the Internet was barely a twinkle in Al Gore’s eye and the birth of Facebook founder Mark Zuckerberg was still six years away.

Last month on our Forbes blog , Anita Tolani, an attorney at Weinberg, Jacobs & Tolani, looked at some of the limitations the 33-year-old legislation is facing when it comes to newer forms of social media — specifically, Facebook. In her opinion piece, Tolani suggested that collectors should not use Facebook to talk about a debtor’s debt (a standard violation of the FDCPA, regardless of the avenue used), but that collection agencies should not be barred from using current technology to communicate with consumers.

A lot has changed from when the legislation was first enacted: “We now have a generation of adults who believe that posting information, words, and photographs regarding their activities, likes, and location is normal practice,” Tolani wrote. “To them, it is not unusual to have only a cell phone, to be in constant communication with friends and family via texting, and to be able to track the location of their ‘friends’ on Facebook using its check-in feature. This is a generation that rarely sees an invitation in a non-electronic format, always knows the phone number that is calling them before they pick up the line, and is so virtual that spending the morning at a local Starbucks with an iPad is just like being at the office.”

The Orlando Sentinel reminded us yesterday that this is still an ongoing issue. They looked at the case of Melanie Beacham, behind on her car payments, and not keen on discussing her delinquent debts with the collection agency hired to recoup the debt. Granted, that collection agency, MarkOne Financial, was maybe a little too eager: Beacham alleges in her lawsuit against the agency that MarkOne had contacted her 23 times in one day.

And then, an employee tried to go all FarmVille on her. And that’s how precedents are made.

In response to both the suit and the press it was getting, MarkOne released a statement to The Atlantic Monthly: “MarkOne’s policy is to only use Facebook to locate customers when the customer has a fully public profile, and when the customer has not responded to MarkOne through conventional means. Our policy is to respect privacy disclosure requirements and no negative or account information is shared with third parties.”

This creates, of course, interesting wrinkles. For one thing, Facebook itself isn’t always entirely clear on what information users post is private, and what is public. (Here’s a quick tip: If you’re posting it anywhere on the Internet, assume your mom is going to read it and that it absolutely isn’t private. Privacy on the Internet is a post-modern fiction.) There’s also the interesting paradox of what users count as “private.” (For instance, I give you Lamebook.com, an often not-safe-for-work site that takes public facebook postings and makes them even more public.) Posting drunken pictures of oneself in a Care Bears t-shirt may be fine for one; posting a message on a wall saying, “Where’s our money?” is maybe not so fine for others.

Mark Schiffman, public affairs director for the Association of Credit and Collection Professionals, is quoted in the Orlando Sentinel with some good cautious advice: “We advise our members — the collection agencies — to handle [social media] with extreme care. Follow the law, it’s the best it can be today for a law that was written in 1978. Obviously, things have changed quite a bit.”

What thoughts do you have about social media and debt collection? There’s a poll below that’s itching for some attention, and we’d love to hear some of your feedback in the comments. Agree or disagree? Let us know.