Month: November 2017

The U.S. consumer watchdog agency, enmeshed in partisan politics since its creation after the 2008 financial crisis, is now at the center of a tug-of-war over who will lead it. Both the departing director — an Obama appointee often criticized as being too aggressive by banks and Congressional Republicans — and the White House have named interim leaders of the Consumer Financial Protection Bureau.

 

What the CFPB is

The CFPB was proposed by now-Sen. Elizabeth Warren, D-Massachusetts, in her previous job at Harvard Law School, and it was created as part of the laws passed following the 2008 financial crisis and subsequent recession. It was given a broad mandate to be a watchdog for consumers when they deal with banks and credit card, student loan and mortgage companies, as well as debt collectors and payday lenders.

 

The idea was to prevent financial companies, such as mortgage servicers, from exploiting consumers. Critics had said those kinds of companies had been subject to weak oversight before the financial crisis.  

 

The CFPB gets its funding from the Federal Reserve and its director is given significant leverage to go after what he or she considers important. The director can be removed only “for cause,” such as neglect of duty, and not over political differences. The structure of the agency has long been a sticking point because of arguments that it gives too much power to a single agency director and limits the president’s ability to replace that person.

What it does

Under the leadership of its first director Richard Cordray, the CFPB implemented or proposed a myriad of new rules and regulations for the banking industry. Nearly every American who deals with banks or a credit card company or has a mortgage has been affected by rules the agency put in place.

The agency has also taken legal action against banks, mortgage companies, credit card issuers, payday lenders, debt collectors and others, and extracted billions of dollars in settlements. When Wells Fargo was found to have opened millions of phony accounts for its customers, the CFPB fined the bank $100 million, the agency’s largest penalty to date.

The banking industry has viewed CFPB as a thorn in its side, and accused it of overreaching in its regulation of consumer financial activities. Cordray lost some notable battles, such as when the GOP-led Congress overturned a regulation that would have ensured that customers could band together to sue their banks in a class action.

 

The leadership fight

Facing Republican opposition, President Barack Obama had used a congressional recess appointment to install Cordray to lead the agency. When President Donald Trump was elected, Cordray became one of the highest-level political appointees to remain, and some Congressional Republicans had urged Trump to fire him.

 

Cordray announced earlier this month that he planned to resign his office by the end of November. Many thought his early resignation would give Trump a chance to appoint his own director, who could remake the agency and potentially roll back the protections Cordray and his staff put into place.

But in tendering his resignation effective Friday, Cordray simultaneously elevated Leandra English, who was the agency’s chief of staff, into the deputy director position. With Cordray’s resignation, English would become acting director. That set up a fight with the Trump White House, which later Friday named Mick Mulvaney, currently director of the Office of Management and Budget, as interim director.

 

Cordray and the White House have cited different laws to support their positions. Administration officials on Saturday acknowledged that some other laws appear to clash with the one they cited, said that in this case the president’s authority takes precedence.

 
…

your ad here

The U.S. State Department on Monday expressed concern about planned legislation it said could weaken Romania’s fight against corruption.

The proposals threaten “the progress Romania has made in recent years to build strong judicial institutions shielded from political interference,” State Department spokeswoman Heather Nauert said in a statement.

The statement urged Parliament “to reject proposals that weaken the rule of law and endanger the fight against corruption.”

Justice Minister Florin Iordache, however, told public broadcaster TVR that the proposals wouldn’t damage the independence of the justice system. He said lawmakers would take into account U.S. concerns.

Romanian magistrates, the general prosecutor and the anti-corruption prosecutors’ agency have also criticized the proposals.

Romania has been praised for efforts to clamp down on high-level corruption in recent years.  However, the left-wing government wants to revamp the justice system, which has sparked protests. On Sunday, tens of thousands demonstrated across Romania.

One proposal is to legally prevent Romania’s president from blocking the appointment of key judges. President Klaus Iohannis says he will use constitutional means to oppose the plan.
…

your ad here

The White House is denying President Donald Trump uttered a racial slur during an Oval Office event Monday honoring some Native American military veterans.

“I don’t think that it is and that certainly not was the president’s intent,” replied Press Secretary Sarah Huckabee Sanders when asked about Trump again referring to Democratic Senator Elizabeth Warren as “Pocahontas,” the name of the famous reputed daughter of an early 17th century tribal chief.

During an event to honor World War II code talkers from the Navajo tribe, Trump, in an ad-libbed remark, told the five elderly Marine Corps veterans “you were here long before any of us were here. Although we have a representative in Congress who they say was here a long time ago. They call her Pocahontas.”

Trump repeatedly called Warren by that name during his successful campaign for the presidency, saying she had lied about her genealogy.

Warren, in the past, had said her mother was “part Cherokee and part Delaware,” but acknowledged no documentation for her lineage.

Having proof of even a trace of Native American or other minority lineage in the United States can allow someone to claim preferred status in college and job applications. 

“I think what most people find offensive is Senator Warren lying about her heritage to advance her career,” retorted Sanders amid several questions on the subject at the daily press briefing just after Trump’s controversial repeating of the remark.

“It is deeply unfortunate that the President of the United States cannot even make it through a ceremony honoring these heroes without having to throw out a racial slur,” responded Warren when asked about Trump’s remarks during an live interview on the MSNBC cable television channel.

“We regret that the President’s use of the name Pocahontas as a slur to insult a political adversary is overshadowing the true purpose of today’s White House ceremony,” says Jefferson Keel, the president of the National Congress of American Indians.   

“We honor the contributions of Pocahontas, a hero to her people, the Pamunkey Indian Tribe in Virginia, who reached across uncertain boundaries and brought people together,” added Keel, who is a U.S. Army officer and Vietnam War combat veteran. “Once again, we call upon the president to refrain from using her name in a way that denigrates her legacy.”

Also upsetting to some was that the event took place under the gaze of President Andrew Jackson, whose portrait Trump has placed in the Oval Office.

Jackson, in 1830, signed the Indian Removal Act, which led to thousands of Native Americans being forced off their sovereign lands.

At Monday’s event, part of National Native American Heritage Month, Trump lavished praise on the code talkers, who all are now in their 90s. 

“You are special people, you are really incredible people,” the president said.

 

The code talkers, little known for decades after the war, until their mission was eventually declassified, first saw combat in August 1942 during the Pacific battle at Guadalcanal.

Using code words for military jargon, such as “turtle” for “tank,” these Marines used only Navajo language as a secure means of communication.

“Well, three weeks after the landing, General Van De Griff, Commander of the 1st Marine Division, sent word back to United States saying, ‘this Navajo code is terrific,’” recalled Peter MacDonald, who heads the group of surviving code talkers. “’The enemy never understood it,’ he said at Monday’s ceremony, ‘we don’t understand it either, but it works. Send us some more Navajos.’” 

 

Eventually there were 400 Native American code talkers and 600 code words.

“Their ability to outwit the Japanese who were listening to this wonderful language and had no idea that a language like this existed on the Earth,” said White House Chief of Staff John Kelly.

Kelly, a retired Marine Corps general, noted that during the invasion of Iwo Jima, the Marines lost 6,000 men and saw another 25,000 wounded during 28 days of battle against the Japanese.

“It would have been a lot worse had we not had the Navajo code talkers,” said Kelly. 
…

your ad here

On Wednesday, the U.S. Supreme Court hears oral arguments in a case that is widely seen as a test of just how far the government can go to pry personal data generated by cell phones and other digital devices.

The case, known as Carpenter v. United States, pits law enforcement interests against the privacy rights of individuals.  

At issue is whether law enforcement authorities need a search warrant to obtain historical cell-site records known as cell service location information (CSLI). The data are kept by phone companies to determine roaming charges and weak spots in their networks and show the cell tower a user connects with at any given time.

The facts of the Carpenter case are straightforward.

 

Between 2010 and March 2011, Timothy Carpenter engineered a series of robberies of several cell phone stores in Ohio and Michigan. After Carpenter and his accomplices were arrested, the FBI requested and received several months of Carpenter’s cell-site records.

 

Such requests are routinely granted by cell phone companies when law enforcement authorities can show that there are “reasonable grounds” the information is “relevant and material” to criminal investigation.

The information showed that Carpenter’s cell phone had connected with cell towers near the stores during the time of the robberies, leading to his conviction on 11 counts of armed robbery.

Carpenter appealed his conviction, arguing that the government had unlawfully obtained his cell phone records without a search warrant. The U.S. Court of Appeals for the Sixth District ruled against him.

 

The court argued that that customers who voluntarily turn over their information to third parties such as cell phone companies, banks and other institutions have no “expectation of privacy.”

 

In two previous cases in the 1970s, United States v. Miller and Smith v. Maryland, the Supreme Court upheld the so-called “third party doctrine.”

 

But privacy advocates say the third party doctrine is not suitable for the digital age, arguing that increasingly sophisticated cell phones have become repositories of data that the government should not be able to access without probable cause.

 

Andrew Ferguson, a professor of law at the University of the District of Columbia, joined a group of 42 criminal procedure and privacy scholars who filed a brief in support of Carpenter.

In an interview with VOA, Ferguson discussed the case and its implications for privacy rights.

What is at issue in Carpenter v. US?

There is both a narrower issue and a broader issue that is potentially at play in Carpenter.  The narrower issue is whether an exception to the Fourth Amendment, called the Third Party Doctrine, should survive the digital age.  And the broader issue is, what does the Court do with a Fourth Amendment that was created in an era of small data when we are in a new world of surveillance?

 

If the court decides the Fourth Amendment doesn’t require a warrant for this data, it means police can actually, without any constitutional limitations, obtain all our personal data for really any reason they want.  There are obviously legislative restrictions but as a constitutional matter it wouldn’t be a Fourth Amendment requirement to get a warrant, to obtain any of this personal information, be it your  smart pacemaker, your smart Fitbit data that can tell whether you’re excited or not excited, and whether any of your information including where you’ve been via your cell phone and any other tracking technology.

What is the government’s argument?

The government essentially says you the consumer have no expectation of privacy  in the information you give up to the third party cell provider.  In fact, you probably don’t know how it works.  The records that are created by these companies, they’re not your records, they’re the companies’ records.

Why would you have an expectation of privacy on the records that these companies did?  If they were selling the data to other companies and made a profit, would you have a claim to the profit?

No.  So what’s the difference between getting the information to the government? The government is getting it like any other party. Why would you be able to claim any sort of expectation of privacy over that information? The government’s position is that the Third Party Doctrine makes sense. It works well for law enforcement and this should just be an easy case of expanding and extending the Third Party Doctrine to the next question, which is the cell site locations.

What is the counterargument?

The counterargument is that the precedent that the government is relying on deals with a different context. So the phone information that was at issue in the original Smith v. Maryland was not very revealing; it was basically the number you called. It wasn’t going to show where you’d been, who you’d visited, the places you’d gone the last few times. It was a situation where you at the time of the old fashioned phone calls voluntarily giving up the information.  You knew you were making phone calls. Here, whether or not you use your cell phone, your cell phone is giving off that information  so you can’t say it’s voluntary relinquishment of your expectation of privacy because if you’re on the phone, that’s the way it works. So there is something about the private nature of this data.

There is something about the Fourth Amendment controls locations and the ability to go places without the government surveillance and oversight.  And these old fashioned cases should be left in the past because the new world is too invasive, too revealing of digital clues, and the fourth amendment needs to adapt.

 

In the brief you and a group of scholars filed in the case, you argue that an extension of the so called Third Party Doctrine “could eliminate citizens’ privacy in the modern age.” Are the stakes that high?

I think they are. If you don’t require a warrant to get this kind of information, and there is not legislation protecting it, there is no constitutional barrier for police to obtain information even about the justices themselves or about individuals who they sort of suspect but don’t have great reason to suspect. It’s going to chill First Amendment association and the ability to get together for political activism.  And it’s going to reveal a whole host of intimate details that most of us would like to keep private from our government.

What if the court rules in favor of Carpenter?

 

If the court rules in favor of Carpenter, and says police are required to get a warrant before doing it, I think it will just settle into a status quo where police get warrants for their criminal investigation.

There may be some here they won’t be able to do that, and it will be an impediment to law enforcement, but by and large they’re doing it already. Right now, most private companies say, look we follow the law. If the law requires a warrant, we require a warrant, and if the law doesn’t require a warrant, we don’t require a warrant.

 

Are there any international ramifications?

Europe is far more protective of data privacy than the U.S. has ever been and has moved there quicker and in more robust fashion.  So in many cases, the U.S. has lessons to learn from Europe as opposed to if you care about data privacy and how to protect it.  So it may be in a case that people around the world will see this as an American phenomenon, wrestling with what the fourth amendment means.

 

Generally speaking, it raises big questions because most of the tech companies are global companies, most of the issues involved privacy, which is certainly not a uniquely American concern, and the technologies are going to be used and sought after by governments in lots of repressive governments that are going to see the ability to use big data surveillance technology, big data policing technologies, to control their citizens.  And one way you can see a lot of the rise of big data policing is as a  measure of social control.
…

your ad here