Jonathan Weinberg of Wayne State has written 'Know Everything that Can Be Known About Everybody': The Birth of the Credit Report, Villanova Law Review, Forthcoming. Here is the abstract:
A remarkable amount of our personal information is in the hands of corporations such as the Experian credit bureau; strangers to us, they make their money by collecting our data, processing it and selling it to others. Other firms make decisions shaping our lives on the basis of credit ratings the credit bureaus assign to us. Those companies have profound impact on our lives, but we are not their customers and have no control over them. Most of us assume that this state of being, in which we find ourselves at the mercy of firms whose business is to process and sell our information, is a new thing – a product of the Information Age, credit cards, and mainframe computers. In fact, it's much older than that.
The story of the 21st-century credit bureau echoes that of the first credit bureau, initially known as the Mercantile Agency, founded before the Civil War. In a world in which such things were unknown, the Mercantile Agency sought to establish and maintain a file on every American who might ever seek commercial credit. Deeply controversial and deeply influential, the Mercantile Agency created an early, computer-free, version of the database system, maintaining and updating files on well over a million people by 1890. It and its rivals put in place a new, pervasive, network of social monitoring that became a central part of the nation's economic infrastructure. The early credit bureaus faced some of the same issues that the modern ones do, and inspired deep privacy fears. Modern privacy law didn't exist yet, and so privacy issues found their way into the law of credit bureaus in the context of defamation lawsuits. The resulting defamation case law displays remarkably modern concerns about the commoditization of information, and about the untrammeled distribution of information about individuals. It suggests possibilities in the evolution of the law that ultimately went unrealized.