Black Lives Matter signs pepper our rural, middle class neighborhood. The lawn signs raise a fundamental question: if Black Lives Matter, what will it take to reverse the longstanding trend that has left many dead and so many others, perhaps all others, suffering? What will it take to create some semblance of equality and equity across racial lines in America? Part I of this essay discusses race and Covid 19. It reviews and updates statistics on Covid deaths and race, and discusses some of the reasons for the racial disparities in Covid deaths. Part II briefly reviews the stratification of income and wealth along racial lines. Part III provides background and texture on how this problem of unequal income, credit terms, and wealth arose in the first place. It describes economic racism and violence by private citizens, as well as governmental racism, credit discrimination, displacement, and segregation. Part IV considers solutions directly related to the wrongs committed by our government against Americans of color, particularly Black Americans. The momentum of Black Lives Matter movement and other similar societal sentiments can help reduce American racial violence, racism, and discrimination, but only if we have concrete policies in place to right past wrongs. While physical racial violence is front and center in today’s Black Lives Matter discussions, including systemic changes designed to end policy brutality, addressing economic racism and disenfranchisement is just as important in remedying the explicit segregation policies the U.S, a legacy tied directly to poverty, police brutality, and death.
The United States is in the middle of a historic and unfolding economic crisis driven by the COVID-19 pandemic. Long term, our response needs to create a path out of the crisis for consumers and businesses. But such a solution takes time. In the meantime, the scope and scale of the crisis is devastating people: there is historic unemployment, loss of income, and expected future losses of income. And from that chaos arises the threat of widespread consumer harm. Millions of people are seeking forbearances or deferments on their debts. Consumer complaints to the Consumer Financial Protection Bureau (CFPB) have reached historic levels. Hundreds of thousands have complained to the CFPB and the Federal Trade Commission specifically about problems related directly to the pandemic. Unfortunately, the CFPB under Director Kraninger acted for the most part as if there were no crisis. More than ten months into a historic pandemic, many regulators had taken actions directed at abuses arising from the crisis, but the CFPB—the federal agency created specifically to protect consumers in direct response to the last economic crisis—had not filed a single enforcement action under Director Kraninger regarding unlawful conduct related to the pandemic. Worse, the cases it did file generally were smaller: less consumer harm, lower amounts of consumer redress, and lower penalties. Further, the non-enforcement action the CFPB took under Director Kraninger in response to the pandemic primarily told companies that it would not prosecute them for violating laws designed to protect consumers. As the crisis unfolded, the CFPB should have ensured stability for both consumers and the marketplace by carefully—and publicly—patrolling abuses. Doing so means taking active steps to ensure that consumers are protected, assessing unfair and abusive conduct in the context of the pandemic, and examining the financial impact from the pandemic on both consumers and the companies that provide them with goods and services. The CFPB must pivot from its typical enforcement strategy, where investigations take years before becoming public, and take public enforcement action now. The CFPB needs to identify violations and take public action quickly, even if those complaints allege relatively few violations. Doing so provides valuable signals—both to consumers and to law-abiding companies—about what conduct is unlawful during the pandemic. In response to these filings, other companies and consumers also can takes steps now to prevent or mitigate future harm from similar conduct. This deterrent effect could be especially important for consumers who are already pushed to the edge by the pandemic. The CFPB also should work with states to bring cases alleging violations of federal law that reinforce state pandemic protections. Further, the CFPB must tell companies the pandemic will not excuse unlawful behavior and indeed that companies must take into account the specific impacts of the pandemic to ensure their practices are fair and do not cause a disparate impact. These actions send the signal that consumer harm will not be tolerated, even during a pandemic, and that the cop is still on the beat.
Many companies enter bankruptcy seeking to sell their assets, including customer data. Although the sale of customer data can be lucrative, it may also violate the company’s own privacy policy, in addition to state and federal law. To address problems regarding the sale of customer data in bankruptcy, Congress amended the Bankruptcy Code in 2005 to provide for the appointment of a “consumer privacy ombudsman” (CPO) in certain instances. The role of the CPO has been scrutinized, criticized, questioned, and debated ever since. Largely missing from this discussion, however, is a critical examination of who the CPO is or should be. This gap in the literature matters: existing research suggests that the identity of the CPO, and the expertise that he or she possesses, is incredibly important, both because little guidance exists in the Bankruptcy Code for CPOs, and because CPOs can play a critical role in protecting customer data and privacy interests in a bankruptcy case. This Article begins to fill that gap. It discusses the identities and qualifications of CPOs in significant cases involving the sale of customer data and makes suggestions to ensure the appointment of a CPO who is disinterested yet qualified to both fulfill the purpose of the Bankruptcy Code and to protect consumer privacy interests. This Article argues that the appointment of a qualified CPO is critical to the proper functioning of the Bankruptcy Code and crucial for the protection of customer data. Although much work remains to be done to protect customer data and privacy interests in a bankruptcy case, devoting resources to the development of expert CPOs is a critical step toward this goal.
