Consumer Law & Policy Blog

Consumer Protection Personnel Moves

The Senate finally confirmed Thomas Curry as the new Comptroller of the Currency, head of the Office of the Comptroller of the Currency.  It will be interesting to see if the OCC swings more to protecting consumers than banks under Curry's leadership.  In addition, the Senate confirmed FTC chair Jon Leibowitz for a second term (the confirmation is as an FTC commissioner, not the FTC chair; the president designates the chair from among the commissioners) and Maureen Ohlhausen as an FTC commissioner.

Two Bloomberg Pieces on Disclosure Issues

Robert H. Gertner of Chicago's Booth School of Business has a particularly interesting piece, Consumer Protection Bureau Can Teach Financial Self-Help, on the limits of disclosures, the need for financial counselors, and how to make such counseling better and more accessible.  Here's an excerpt:

The only regulatory regime that has a chance of making substantial progress is one that helps the market-based solution for advice work better. Structuring disclosure regulation to make advice markets more efficient rather than to make disclosure more understandable to consumers should be a goal. For example, my Chicago Booth colleague Richard Thaler has recommended requiring standard machine-readable disclosure of all financial terms to reduce the costs of comparisons across offerings. In a world of individualized offerings, the savings could be huge.

A second policy is for the government to develop an effective certification program for consumer financial advisers. In addition to knowledge requirements, the government would require that advisers have no financial incentives to prefer some products to others. Rather than teaching financial literacy, outreach programs could focus on educating consumers on the need for a competent, unbiased, certified financial adviser.

In another piece, Bloomberg reports Senators Introduce Bill for Counseling on Private Student Loans.

 

Eating any red meat may be bad for you

As the LA Times explains, "[e]ating red meat — any amount and any type — appears to significantly increase the risk of premature death, according to a long-range study that examined the eating habits and health of more than 110,000 adults for more than 20 years." Read the full study in the Archives of Internal Medicine.

Accountability and the CFPB

The Republicans who opposed CFPB director's confirmation claimed that he would not be accountable.  Well, he testified today before the House Financial Services Committee.  Here's a quote:

Before I became Director, I promised members of Congress in both chambers and on both sides of the aisle that I would be accountable to you for how the Consumer Bureau carries out the laws you enact. I said that I would always welcome your thoughts about our work. I stand by that commitment. I am pleased to be here with you today to tell you about our work and to answer your questions.

The people who work at the Consumer Bureau are always happy to discuss our work with the Congress. This is the 15th time that we have testified before either the House or the Senate.

When a Bureau that is less than a year old has testified 15 times, does that sound like it's making an effort to be accountable?

The Affordable Care Act and the Slippery Slope

We can't lower the drinking age to 18 even if we think that's sensible because, if we do, then we'll have to lower the drinking age to 10. And we can't possibly do that! As every successful law school student quickly learns, the answer to a slippery slope argument is that, no, logic does not always demand that we slip all the way down the slope. Actually, we can draw a line here or there and then try to defend that line as reasonable or necessary. Slippery slope arguments are not irrebuttable, and if you think they are, you will lose a lot of arguments.

But as law professor Geoffrey Stone explains in this insightful article, in analogizing the Affordable Care Act's individual insurance mandate to the forced purchase of, say, broccoli, some Supreme Court justices seem to think they're on a slope so slippery that there's no way to stop.

Major League Soccer Should Reform Its Copyright Takedown Procedures to Safeguard Fair Use

by Paul Alan Levy

Following up my post yesterday about an abusive DMCA takedown notice from Major League Soccer, I have been in touch with the soccer fan whose YouTube clip was removed and, on his behalf, sent MLS an explanation of what we think they are doing wrong and what they ought to do to make the matter right:  not just withdraw the takedown in question here, but fix their takedown procedures so that fair use receives proper consideration.

UPDATE

MLS has rescinded the takedown, but in response to inquiries from Soccer America they seem to be inviting more trouble.  Don't they have IP counsel on staff to warn them what the law is?  Very sad.

NEW UPDATE:

A guide to fair use in the posting of soccer videos can be found here.

 

The Health Care "Mandate" Oral Argument Compressed

For those of you who don't have a couple hours to spare, Tejinder Singh has edited down the audio from yesterday's Supreme Court argument on the Affordable Care Act's individual mandate to its essentials.

Major League Soccer's misuse of copyright law to suppress criticism

by Paul Alan Levy

After protecting consumers’ right to online free speech, my second biggest passion is soccer.  So the latest DMCA takedown controversy comes right up my alley.

Yesterday I enjoyed posting a link to friends calling attention to a tiny You Tube clip, little more than 20 seconds, showing a Colin Clark, a player for Major League Soccer team Houston Dynamo calling a ball boy at the Seattle Sounders stadium a “faggot” because he did not deliver the ball directly into the player’s hands, but rather tossed the ball onto the ground for the player to pick up.  The video was widely publicized, and Clark issued an apology.  Meanwhile, the video occasioned a discussion among soccer fans, who compared the comment to recent controversies in Europe over racist comments directed toward players by other players or by fans or said that the league should take disciplinary action, questioned whether the ball boy had deliberately slowed the game down (Houston was losing at the time) and whether teams need to train their ball boys (or ball girls) better so that such incidents do not recur.  All in all, a healthy discussion, but one which, perhaps, did not reflect well either on Clark or on MLS.

My own comment in posting the link was, unfortunately, rather prescient: 

•     Waiting to see MLS take prompt, strong action over player directing anti-gay slur at ballboy. And I don't mean a DMCA take-down to suppress the news.

As of today, the link had been taken down pursuant to an MLS copyright complaint. 

No doubt the clip was taken from a copyrighted telecast, but there can also be no doubt that this was fair use – a 20 second clip from a 90 minute game (plus introduction, ending and the like). And how can viewers appreciate the commentary and make their own judgments about its soundness, not to speak of commenting themselves), without seeing exactly what the ball boy did and how Clark reacted?

Major League Soccer should be ashamed.  It should also have thopught about the possibilty that the takedown itself might bring more attention to the criticisms.    Indeed, here is a slightly longer clip, which has not yet been taken down, so you can judge for yourself.

UPDATE:

A fan's guide to fair use in posting soccer video clips (or, indeed, videos from any game) is posted here.

Robert Reich on the Supreme Court and Single-Payer Health Care

In this article, former Labor Secretary Robert Reich explains how, in the unlikely event (my words, not his) that the Supreme Court strikes down the individual health care mandate, and the Affordable Care Act therefore unravels, "with a bit of political jujitsu, the president could turn any such defeat into a victory for a single-payer healthcare system -- Medicare for all."

FTC Issues Privacy Report

As the Washington Post explains here, "The Federal Trade Commission [yesterday] urged Congress to enact Internet privacy laws that would force data brokers to reveal what information they buy and sell about consumers." The article goes on:

Much of the 73-page report focused on the need for companies to clearly explain how they collect data about users and for what purposes they use that information. he FTC called for legislation on data brokers — the Web's information middlemen, such as Lexis Nexis and Choicepoint — who take data that has been collected online and merge the information with documents offline to create detailed portraits of consumers. The brokers “sell a wealth of highly personal information about consumers but never interact directly with them,” according to the report. “Consumers are often unaware of the existence of these entities, as well as the purposes for which they collect and use data.”

The FTC explains that it is asking companies to establish reforms in three key areas:

• Privacy by Design - companies should build in consumers' privacy protections at every stage in developing their products. These include reasonable security for consumer data, limited collection and retention of such data, and reasonable procedures to promote data accuracy;
• Simplified Choice for Businesses and Consumers - companies should give consumers the option to decide what information is shared about them, and with whom. This should include a Do-Not-Track mechanism that would provide a simple, easy way for consumers to control the tracking of their online activities.
• Greater Transparency - companies should disclose details about their collection and use of consumers' information, and provide consumers access to the data collected about them.

Read the FTC's Full Report and its Report homepage containing, among other things, synopses of various aspects of the Report and links to information about how consumers can protect their privacy.