07/15/2013 11:22 am ET Updated Sep 14, 2013

Banks and Stores, Not CFPB, Spy on Consumers

Tomorrow, Tuesday, July 16th, expect a Senate showdown vote< on the confirmation of Richard Cordray to a full term as director of the Consumer Financial Protection Bureau (read a letter of support from over 150 members of Americans for Financial Reform, including U.S. PIRG and state PIRGs).

Meanwhile, however, consumer protection opponents continue to make stuff up, from saying again and again without justification that the CFPB is unaccountable to repeating their latest false claim: that its "creepy" use of data equates it with the NSA.

First, the CFPB is accountable to Congress and the American people. That question has been asked and answered. Wall Street and other CFPB opponents simply don't like the idea of an agency with the job of protecting consumers.

And as for the second claim, that the CFPB is watching you -- it's false. Actually, it's the banks, retail stores and websites that are conducting ongoing surveillance on consumers. Today's New York Times even explains in a story and video that retail stores use your cell phone as a homing beacon to follow you around the store.

The CFPB merely studies data to make markets work better, while the banks -- as well as retail stores and online websites and ad networks -- track consumers far and wide -- both on and off the Internet -- to build comprehensive, secretive profiles in hopes of manipulating consumer actions.

For more on the virtually unregulated "Big Data" tracking and surveillance practices of banks, data brokers, websites, ad networks, direct marketers and others, see my forthcoming Suffolk Law Review article< on Internet surveillance and the need for greater consumer protections; also see a recent speech proposing a new right to "Reclaim Your Name," by FTC Commissioner Julie Brill.

But let's get's back to the attacks on the CFPB's use of data to protect consumers and make markets work better. Last week, at a hearing of the House Financial Services Committee, CFPB Acting Deputy Director Steven Antonakes (that committee petulantly refuses< to hear testimony from Director Cordray) made compelling arguments in defense of the CFPB's lawful use of data:

"The Bureau makes every effort to obtain market data in an efficient manner with an eye toward reducing the burden and cost on industry. The Bureau also makes every effort to safeguard and protect the information that it does obtain. The Bureau collects and studies data in order to protect consumers throughout the United States in accordance with its statutory mandate, not to study any particular individuals (emphasis added)."

We know of no privacy or civil liberties organization questioning the CFPB's motives or activities. In fact, U.S. PIRG joined other leading privacy and consumer groups in support of the CFPB's efforts.

The House hearing on data was just the latest pile-on as Wall Street seeks an issue, any issue, that will gain traction for its efforts to kill the CFPB. Recently, the U.S. Chamber of Commerce -- in a sort-of-demand letter to CFPB director Richard Cordray -- claimed that CFPB's data collection "may violate" the law. The letter amusingly adopts the style of asking a series of questions, in the manner of an actual Congressional inquiry.

For answers, officials over at the Chamber should read CFPB director Richard Cordray's detailed 43-page response letter and attachments to an actual member of Congress, Senator Mike Crapo, the ranking member of the Senate Banking Committee, after his own official request for answers about the legality of and need for CFPB data collection.

For a shorter proof of both the legality of and need for the CFPB's efforts, see a Bloomberg story titled "Consumer data collection needed by agency, Cordray says." The Bloomberg story summarizes the CFPB's detailed explanation of the legality of its data collection and its rejection of the indefensible claim that its data collection constitutes a surveillance system over consumers.

"Jen Howard, a spokeswoman for CFPB, said the provision referenced by the chamber refers to the bureau's authority to collect information from all companies in the bureau's jurisdiction. Another part of the law requires the agency to collect appropriate information from companies it supervises to assess compliance with consumer-protection laws and detect risks to consumers, she said. "The bureau's existing data-gathering activities are authorized by the Dodd-Frank Act and do not require additional rulemaking," Howard said in an e-mail."

The Bloomberg story above concludes: "Cordray insisted that the data gathered didn't invade consumers' privacy, is crucial to good regulation and mimics approaches already in wide use in the private sector. "The big banks know more about you than you know about yourself," Cordray said at a hearing of the Senate Banking Committee. "And me, too, as a consumer."

Lawyers are taught to "Argue the law when it's on your side; argue the facts when they're on your side; otherwise, just argue." Some versions of the adage don't say "just argue" but say to "yell" or even "holler." Lately, opponents of the CFPB have just been hollering.

Just as they have failed to show that the CFPB is unaccountable, the Chamber and Congressional and other CFPB opponents have failed on both the facts and the law to question the legality of or the need for the CFPB's data collection. They are just hollering because none of their previous complaints about the bureau have had any validity nor has anyone, outside of a small circle of Washington special interest lobbyists, supported their views. Small businesses, public interest leaders and consumers all strongly support the CFPB.

It's time to stop making stuff up about the CFPB. It's not spying on Americans. It's out there protecting American consumers -- from families to seniors, from students to veterans -- from unfair financial practices.

It's time to allow an up or down vote to confirm its director, Rich Cordray, so he and the CFPB can get back to Job One: getting the financial system working again for consumers and fair-dealing firms. The financial system failed five years ago due to to a lack of adequate regulation. That wrecked our economy and left millions without homes or jobs. We're still recovering.

CFPB opponents are entitled to dislike the CFPB but not to hold its director, as well as consumers, fair-dealing firms and the economy hostage to their demands. If opponents want to change the CFPB, why don't they make an effort to convince Congress to change it through a "regular order" legislative process?