Social Media: Consumer Compliance Risk Management Guidance

Financial Institution Letter

FIL-56-2013

December 11, 2013

Social Media: Consumer Compliance Risk Management Guidance

Summary: The Federal Financial Institutions Examination Council (FFIEC), on behalf of its members,

released final guidance on the applicability of consumer protection and compliance laws, regulations, and

policies to activities conducted via social media by banks, savings associations, and credit unions, as well as

nonbank entities supervised by the Consumer Financial Protection Bureau. The guidance provides

considerations that financial institutions may find useful in conducting risk assessments and developing and

evaluating policies and procedures regarding social media.

Statement of Applicability to Institutions Under $1 Billion in Total Assets: This Financial Institution Letter

applies to all FDIC-supervised institutions.

Distribution:

FDIC-Supervised Institutions

Highlights:

The guidance:



Is intended to help financial institutions understand and

successfully manage the potential risks regarding the use of

social media;



Clarifies that existing consumer protection and compliance laws

and regulations apply to activities conducted by financial

institutions through social media as they would to activities

conducted through other channels;



Reminds institutions that they must properly address risks,

including compliance, operational, third-party, and reputation

risks, that arise in connection with social media activities; and



Does not impose any new requirements on financial institutions.

Suggested Routing:

Compliance Officer

General Counsel

Attachment:

Social Media: Consumer Compliance Risk

Management Guidance

Contact:

Elizabeth Khalil, Senior Policy Analyst and

Acting Special Assistant to the Deputy Director,

ekhalil@fdic.gov or (202) 898-3534

Pamela Freeman, Senior Examination Specialist,

pfreeman@fdic.gov or (202) 898-3656

Richard M

l institutions.

Suggested Routing:

Compliance Officer

General Counsel

Attachment:

Social Media: Consumer Compliance Risk

Management Guidance

Contact:

Elizabeth Khalil, Senior Policy Analyst and

Acting Special Assistant to the Deputy Director,

ekhalil@fdic.gov or (202) 898-3534

Pamela Freeman, Senior Examination Specialist,

pfreeman@fdic.gov or (202) 898-3656

Richard M. Schwartz, Counsel,

rischwartz@fdic.gov or (202) 898-7424

Note:

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ml.

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3342 or 703-562-2200).

Federal Deposit Insurance Corporation

550 17th Street NW, Washington, D.C. 20429-9990

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), Board of

Governors of the Federal Reserve (Board), Federal Deposit Insurance Corporation (FDIC), 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

dopting, 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

cial 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

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

ry 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 establishes 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 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 inst

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

ress 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 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

d 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 707.1 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.



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 B2 and Fair Housing Act.3 A

financial institution should ensure that its use of social media does not violate fair lending laws and

regulations.



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

s use of social media does not violate fair lending laws and

regulations.



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.4



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.

1 12 U.S.C. 4301 et seq., 12 C.F.R. pts. 230 and 1030 and 12 C.F.R. pt. 707 (NCUA).

2 15 U.S.C. 1691 et seq., 12 C.F.R. pts. 202 and 1002 and 12 C.F.R. 701.31 (NCUA).

3 42 U.S.C. 3601 et seq., 24 C.F.R. pt. 100 (HUD), 12 C.F.R. pt. 128 (OCC), 12 C.F.R. pt. 390

subpart G (FDIC), 12 C.F.R. 701.31 (NCUA).

4 12 C.F.R. pt. 1002, Comment 4(b)-2.



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.5



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.6 This requirement applies whether the information used to deny

credit comes from social media or other sources.



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

the applicant of his or her right to request the specific

reasons for the decision.6 This requirement applies whether the information used to deny

credit comes from social media or other sources.



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 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.



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.7

Truth in Lending Act/Regulation Z.8 Any social media communication in which a creditor

advertises credit products must comply with Regulation Z’s advertising provisions

l 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.7

Truth in Lending Act/Regulation Z.8 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.



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.



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.



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

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.



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.

5 12 C.F.R. 1002.12(b)(7).

6 12 C.F.R. 1002.9(a)(2).

7 12 C.F.R. 128.4, 338.3, 390.145.

8 15 U.S.C. 1601 et seq.; 12 C.F.R. pts. 226 and 1026.

Real Estate Settlement Procedures Act. Section 8 of the Real Estate Settlement Procedures Act9

(RESPA) 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.

Fair Debt Collection Practices Act.10 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

ly 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.

Unfair, Deceptive, or Abusive Acts or Practices. Section 5 of the Federal Trade Commission

(FTC) Act11 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 Act12 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 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.13

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

mation it communicates on social media sites is accurate,

consistent with other information delivered through electronic media, and not misleading.13

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.



Advertising and Notice of FDIC Membership.14 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).



Advertising and Notice of NCUA Share Insurance.15 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

9 12 U.S.C. 2607. See Interagency Guidance, Weblinking: Identifying Risks and Risk Management

Techniques, (2003), available at http://www.occ.treas.gov/news-issuances/bulletins/2003/bulletin-

2003-15a.pdf, at pp. 5, 7.

10 15 U.S.C. 1692-1692p.

11 15 U.S.C. 45.

12 12 U.S.C. 5531, 5536

dless of delivery channel, unless specifically exempted. An

9 12 U.S.C. 2607. See Interagency Guidance, Weblinking: Identifying Risks and Risk Management

Techniques, (2003), available at http://www.occ.treas.gov/news-issuances/bulletins/2003/bulletin-

2003-15a.pdf, at pp. 5, 7.

10 15 U.S.C. 1692-1692p.

11 15 U.S.C. 45.

12 12 U.S.C. 5531, 5536.

13 See FTC Guidance, including Guides Concerning the Use of Endorsements and Testimonials in

Advertising, available at http://www.ftc.gov/news-events/media-resources/truth-

advertising/advertisement-endorsements.

14 12 C.F.R. pt. 328.

15 12 C.F.R. pt. 740.

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 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.



Nondeposit Investment Products. As described in the “Interagency Statement on Retail

Sales of Nondeposit Investment Products,”16 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

6 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.

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.17 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.”

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 rules18 and/or Article 419 of

the Uniform Commercial Code of the relevant state, as well as the Expedited Funds Availability Act,

as implemented by Regulation CC20 (regarding the availability of funds and collection of checks)

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 rules18 and/or Article 419 of

the Uniform Commercial Code of the relevant state, as well as the Expedited Funds Availability Act,

as implemented by Regulation CC20 (regarding the availability of funds and collection of checks).

Bank Secrecy Act/Anti-Money Laundering Programs (BSA/AML)

As required by the Bank Secrecy Act (BSA)21 and applicable regulations,22 depository institutions and

certain other entities must have a compliance program that incorporates training from operational

16 Interagency Guidance, Retail Sales of Nondeposit Investment Products (Feb. 17, 1994).

17 15 U.S.C. 1693 et seq., 12 C.F.R. pts. 205 and 1005.

18 See Operating Rules of the National Automated Clearing House Association (NACHA), available at

http://www.achrulesonline.org/; Rules of the Electronic Check Clearinghouse Organization (ECCHO),

available at https://www.eccho.org/cc/rules/Rules%20Summary-Mar%202012.pdf.

19 UCC Art. 4.

20 12 C.F.R. pt. 229.

21 “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 Public Law 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.

22 Bank Secrecy Act regulations are found throughout 31 C.F.R. Chapter X. Also, the federal banking

agencies require institutions under their supervision to establish and maintain a BSA compliance

program. See 12 C.F.R. 21.21, 163.177 (OCC); 12 C.F.R. 208.63, 211.5(m), 211.24(j) (Board); 12

C.F.R. 326.8, 390.354 (FDIC); 12 C.F.R. 748.2 (NCUA). See also Treas. Dep’t Order 180-01 (Sept.

26, 2002).

Bank Secrecy Act regulations are found throughout 31 C.F.R. Chapter X. Also, the federal banking

agencies require institutions under their supervision to establish and maintain a BSA compliance

program. See 12 C.F.R. 21.21, 163.177 (OCC); 12 C.F.R. 208.63, 211.5(m), 211.24(j) (Board); 12

C.F.R. 326.8, 390.354 (FDIC); 12 C.F.R. 748.2 (NCUA). See also Treas. Dep’t Order 180-01 (Sept.

26, 2002).

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. 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

ng 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 Act23

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

lic 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:

Gramm-Leach-Bliley Act Privacy Rules and Data Security Guidelines.24 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

23 12 U.S.C. 2901 et seq., 12 C.F.R. pts. 25, 195, 228, 345.

24 15 U.S.C. 6801 et seq., 12 C.F.R. pt. 1016 (CFPB) and 16 C.F.R. pt. 313 (FTC); Interagency

Guidelines Establishing Information Security Standards, 12 C.F.R. pt. 30, app. B and pt. 170, app. B

(OCC); 12 C.F.R. pt. 208, app. D-2 and pt. 225, app. F (Board); 12 C.F.R. pt. 364, app. B (FDIC); 12

C.F.R. pt. 748, app. A & B (NCUA); Safeguards Rule, 16 C.F.R. pt. 314 (FTC).

5, 195, 228, 345.

24 15 U.S.C. 6801 et seq., 12 C.F.R. pt. 1016 (CFPB) and 16 C.F.R. pt. 313 (FTC); Interagency

Guidelines Establishing Information Security Standards, 12 C.F.R. pt. 30, app. B and pt. 170, app. B

(OCC); 12 C.F.R. pt. 208, app. D-2 and pt. 225, app. F (Board); 12 C.F.R. pt. 364, app. B (FDIC); 12

C.F.R. pt. 748, app. A & B (NCUA); Safeguards Rule, 16 C.F.R. pt. 314 (FTC).

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.



A financial institution using social media should clearly disclose its privacy policies as

required under GLBA.



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 Act25 and Telephone Consumer Protection Act.26 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,27

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

PA, and their implementing rules,27

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.

Children’s Online Privacy Protection Act.28 The Children’s Online Privacy Protection Act (COPPA)

and the Federal Trade Commission’s implementing regulation29 impose obligations on operators of

commercial websites 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 websites 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.



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.



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

ion’s site.



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.30 The Fair Credit Reporting Act (FCRA) and its implementing

regulations31 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.

25 15 U.S.C. 7701 et seq.

26 47 U.S.C. 227.

27 16 C.F.R. pt. 316 (FTC); 47 C.F.R. pts. 64 and 68 (FCC).

28 15 U.S.C. 6501 et seq.

29 16 C.F.R. pt. 312.

30 15 U.S.C. 1681-1681u.

31 12 C.F.R. pt. 1022 (CFPB); 12 C.F.R. pt. 41 (OCC); 12 C.F.R. pt. 222 (Board); 12 C.F.R. pt. 334

(FDIC); 12 CFR pts. 717, 748 (NCUA).

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

nts. 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 Concerns32

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

at 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 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

32 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 http://files.consumerfinance.gov/f/201204_cfpb_bulletin_service-providers.pdf;

FDIC FIL 44-2208, Managing Third-Party Risk (June 6, 2008), available at

http://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

http://www.ncua.gov/Resources/Documents/LCU2007-13.pdf; OCC Bulletin OCC 2013-29, Third-

Party Relationships (Oct

/f/201204_cfpb_bulletin_service-providers.pdf;

FDIC FIL 44-2208, Managing Third-Party Risk (June 6, 2008), available at

http://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

http://www.ncua.gov/Resources/Documents/LCU2007-13.pdf; OCC Bulletin OCC 2013-29, Third-

Party Relationships (Oct. 30, 2013), available at http://www.occ.gov/news-

issuances/bulletins/2013/bulletin-2013-29.html; Interagency Guidance, Weblinking: Identifying Risks

and Risk Management Techniques, (2003), available at http://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

http://ithandbook.ffiec.gov/media/resources/3315/ncu-03-cu-08_weblinking_tech.pdf.

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

tage 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

sponding 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

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.33 Operational risk includes the risks posed

by a financial institution’s use of information technology (IT), which encompasses social media.

33 FFIEC IT Examination Handbook: Management booklet, 2-3 (June 2004), available at

http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_Management.pdf.

The identification, monitoring, and management of IT-related risks are addressed in the FFIEC

Information Technology Examination Handbook,34 as well as other supervisory guidance issued by

the FFIEC or individual agencies.35 A financial institution should pay particular attention to the

booklets “Outsourcing Technology Services”36 and “Information Security”37 when using social media,

and include social media in existing risk assessment and management programs.

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

keover 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.

34 Available at http://ithandbook.ffiec.gov/it-booklets.aspx.

35 FFIEC InfoBase at http://ithandbook.ffiec.gov.

36 Available at

http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_OutsourcingTechnologyServices.pdf.

37 Available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf.