CFPB’s data-mining on consumer credit cards challenged in heated House hearing

Washington Examiner – by Richard Pollock

Consumer Financial Protection Bureau officials are seeking to monitor four out of every five U.S. consumer credit card transactions this year — up to 42 billion transactions – through a controversial data-mining program, according to documents obtained by the Washington Examiner.

A CFPB strategic planning document for fiscal years 2013-17 describes the “markets monitoring” program through which officials aim to monitor 80 percent of all credit card transactions in 2013.  

The U.S. Census Bureau reports that 1.16 billion consumer credit cards were in use in 2012 for an estimated 52.6 billion transactions. If CFPB officials reach their stated “performance goal,” they would collect data on 42 billion transactions made with 933 million credit cards used by American consumers.

In addition, CFPB officials hope to monitor up to 95 percent of all mortgage transactions, according to the planning document.

“This is one step closer to a Big Brother form of government where they know everything about us,” said Rep. Sean Duffy, R-Wis.

At a Wednesday hearing before the House Financial Services Committee chaired by Rep. Jeb Hensarling, R-Texas, CFPB Director Richard Cordray defended the data-mining practice and said his agency is monitoring credit card usage at 110 banks, including Morgan Chase, Bank of America, Capital One, Discover and American Express.

In a related development, Rep. Spencer Bachus, Hensarling’s predecessor on the House Financial Services Committee, told the Examiner he believes CFPB violated at least two federal laws by using the impartial U.S. Trustee Program to gather bankruptcy data as part of the data-mining campaign.

The Examiner reported Monday that bankruptcy experts are concerned that CFPB is undermining the trustee program’s independence and impartiality. The trustee program is the federal government’s main administrative agency for handling bankruptcy cases.

Bachus also told the Examiner after Wednesday’s hearing that a key House subcommittee is planning hearings on possible CFPB abuse of the bankruptcy trustee.

“The bankruptcy and anti-trust subcommittee of the House Judiciary Committee is investigating this as we speak, and we anticipate a notice of a hearing on this in the near future,” Bachus said.

The Dodd-Frank Act, which established CFPB, bars the bureau from collecting personally identifiable financial information on consumers and prohibits it from regulating practicing attorneys.

Bachus said Cordray “exceeded his authority” and violated both provisions if he tried to use the trustee program to obtain files from a company that maintains a document archive for thousands of bankruptcy case attorneys.

“He [Cordray] basically said to me, ‘We needed to do this. This was something we thought we ought to do.’ He never said, ‘OK, it probably violates two provisions of the law,’ a very clear ‘Do not do this,’ ” Bachus said.

Bachus said CFPB may also have violated the Fourth Amendment, which entitles Americans to be free from government interference or intrusion in dealing with their legal representation.

“They are challenging through their actions, one of the most basic freedoms guaranteed by our forefathers and that is the right to counsel,” he said. “It’s just nuts.”

At Wednesday’s hearing, Cordray refused to answer questions from committee members about CFPB’s relationship with the trustee program.

“We don’t typically comment on the details of enforcement matters,” he said, though he acknowledged that the bureau is “working with a number of different agencies, including the Justice Department, to carry out our responsibilities and we will try to do that.” The trustee program is part of the Department of Justice.

The disclosures capped a day of often heated exchanges between Cordray and Republican members of the financial services committee. Nearly all of the panel’s Republicans attended the hearing, but only a handful of Democrats.

Democrats praised Cordray, whose appointment by President Obama was ruled improper by a federal court earlier this year because it was done while the Senate was in recess. He was finally confirmed in July after Obama agreed to resubmit the nomination following the court ruling.

Rep. Maxine Waters, D-Calif., for example, commended Cordray for “how well” he had “worked with a lot of stakeholders and [his] careful leadership of this young agency.”

But the hearing was dominated by charges of an agency operating beyond its legal authority, rife with conflicts of interest, and mismanagement.

Hensarling opened the hearing by noting that CFPB “is designed to operate outside the usual system of checks and balances that applies to every other government agency.”

Rep. Patrick McHenry, a North Carolina Republican, questioned a $5 million contract that CFPB had awarded to a company co-founded by the head of the bureau’s Office of Research. He called it a serious case of “conflicts of interest.”

But it was Duffy’s confrontation with Cordray over the bureau’s credit card data-mining case that caused the most fireworks.

“Why don’t you just level with us?” Duffy told Cordray after the CFPB leader repeatedly refused to say how many credit cards are being reviewed by his agency.

“We’ve been asking these questions over and over and over again. You come in and stonewall, you try to explain, but never do we get answer. Never does America get answers,” Duffy told Cordray.

When Duffy compared CFPB data-mining to the National Security Agency’s surveillance program,Cordray angrily replied that “there is no comparison between the NSA and the CFPB.”

“Oh, there is,” Duffy retorted.

Duffy was able to extract from Cordray the names of five major banks of 110 that issue credit cards.

Duffy said CFPB was trying to gain access to nearly 1 billion credit card users in 2013.

“The agency has never given us a number of how many Americans have been surveilled. However, we’ve seen in their disclosures they are collecting 80 percent of credit cards in America, 1.16 billion credit cards, which means that they are collecting information on just under a billion credit cards in America. That’s a scary number,” Duffy said.

The CFPB strategic plan shows that in 2012, the bureau was able to gain access to 77 percent of all credit cards and hoped to increase that to 80 percent in 2013. By 2014, the agency also hopes to monitor up to 95 percent of all mortgage transactions.