If the Consumer Financial Protection Bureau disappeared tomorrow, would anyone notice?

What is expected to be a contentious Senate Banking Committee confirmation hearing Tuesday for Rich Cordray, who has been temporarily leading the bureau, offers an opportunity to examine the need for a federal agency designed to protect consumers in their financial dealings. If confirmed, Cordray gets a five-year term, but he’s certain to face a major fight from Republicans, who say the bureau is ill-conceived. We spoke to one of the agency's biggest supporters and perhaps its fiercest opponent to get some perspective. But first, a little background:

Born out of the financial crisis, the first new federal consumer protection agency since the Depression, the CFPB has had a rocky start. Republicans railed against the idea but couldn't stop Democrats from passing the financial reform legislation that created it, so instead they blocked appointment of Cordray in 2011, effectively putting the bureau into limbo. President Barack Obama then used a recess appointment to seat Cordray, setting off a battle that is still going on.

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The political dispute didn't stop the bureau from shooting out the gate, however. It its 15 months of existence, it has written a host of new rules for lenders, set up a huge public database of consumer complaints and generally irritated most of the financial industry.

Many in the banking industry are still hopeful they can dismantle the CFPB, unseat Cordray and potentially undo everything the bureau has accomplished with a single court victory.

A federal court ruling in January found that another recess appointment by Obama was improper, creating the possibility that it might agree with Republicans who argue Cordray’s recess appointment was illegitimate, too. Some opponents argue that would make everything the bureau has done since his appointment void.

Expect bickering

That legal battle is still in the future, but Tuesday's confirmation hearing serves as a proxy for the fight and another chance for political posturing by both sides. There will be plenty of "Your regulations are killing jobs" vs. "Do you want a repeat of the 2008 recession?" bickering.

The discussion has potential to be a little more elevated, however, as this time the CFPB has a track record to examine.  As far as federal agencies go, it's just  a baby. But as long as we're fighting about it, it’s worth asking what the CFPB has done to prove its worth. 

In one corner ...

Todd J. Zywicki, a law professor at George Mason University with expertise in bankruptcy and contracts, says the CFPB has become exactly the monster he predicted three years ago when Congress debated its creation.

"It's turned out to be an extremely political agency,” he said. “... It's turned out to be really aggressive and arrogant in the way it behaves.”

When one of Obama’s recess appointments was invalidated, the agency response was "typical,” he said.

"They said that ruling doesn't apply to us,” Zywicki said. “What that shows is an agency that is very arrogant and out of control.”

The CFPB has unusual power among federal agencies. Unlike the Federal Trade Commission, the Federal Communications Commission and other agencies which are run by members of a commission with mixed political affiliations, the CFPB has a single agency head. It also does not have to submit its annual budget for congressional review the way other regulators must.

"They've created an unaccountable super-regulator that can and has acted as a highly political agency," Zywicki said. "If the CFPB were to go away tomorrow, it would be a boon for consumers and the economy."

Zywicki's most specific concern about the agency before its creation was that it would hurt lenders, and therefore hurt  consumers who were trying to borrow money. That has happened, he said.

"Our concern from the beginning was that it would act in a manner that would restrict credit and hurt the economy," he said. "Look at its rules on qualifying for mortgages (which impose stricter requirements on borrowers). ... It's stifling innovation (by banks) and restricting consumer choices."

He also said that the agency's new rules are disproportionately impacting the nation's smaller banks, which have smaller legal staffs to deal with them.  

"Because of the massive regulatory burden it is imposing on the economy, (the agency) is promoting a consolidation of the banking industry" by burdening small banks, Zywicki said. He could not point to a bank that closed or was sold because of CFPB rules but said that smaller community banks across the country are consistently complaining about the rules.  "It's the overall effect of regulations," he said. "It's not just the CFPB, but it is piling on."

And in the other ...

Taking the opposing view is Ed Mierzwinski, consumer program director for the consumer advocacy agency Public Interest Research Group and a vocal supporter of the CFPB creation and of Cordray. He gives the agency an "A-minus" for its work so far and has no trouble rattling off a list of accomplishments in its short life. Among them, he said, the bureau has:

• Successfully brought enforcement cases against three large credit card issuers for allegedly unfairly "upselling" products such as credit card insurance, and returned $400 million to 6 million U.S. consumers after a settlement.
• Created new mortgage disclosure documents, promoted awareness among college students about school loan debt and launched a separate effort to protect soldiers and veterans from predatory lenders, all through its “Know Before You Owe” program.
• Become the first federal agency to supervise so-called “non-bank banks” and begun to focus on products such as payday loans, title loans and other non-traditional borrowing products, as well as private student lenders.
• Worked to increase transparency, including creation of a public disclosure website that lists consumer complaints and, unlike similar databases at other agencies, allows anyone to browse the complaints, including information on the companies targeted.  Agencies such as the Federal Trade Commission do not make complaints pubic.

"The CFPB data allows (observers) to rank the companies involved. No one wants to be No. 1 on that list," Mierzwinski said. Public shaming is an effective regulatory tool, he argued, one that hasn't been used by other agencies.

When asked about the theoretical possibility that the agency could disappear, Mierzwinski said consumers would lose the benefit of actions he expects in the next 15 months, specifically related to the CFPB's recently acquired new power to regulate credit bureaus and debt collectors.

"The FTC never had the tools to go after them,” he said. “... Now for the first time, a federal agency can go into the credit bureaus and debt collectors and say, 'Show me your books.'"

Mierzwinski said the FTC has never held the credit bureaus financially accountable for credit report errors and predicted CFPB enforcement would lead to more accurate credit reports.

In a more general way, he says enforcement actions and additional regulatory oversight help all consumers, even if they haven't received a refund check based on a bureau lawsuit.

"I'm convinced that many banks eliminated those kinds of practices," such as selling credit card insurance, after a CFPB lawsuit,” he said.  "So going forward, you will see fewer unfair offers from banks. ... If you have a mortgage, going forward your servicing rules will be fairer."

Mierzwinski’s chief argument for preserving the CFPB: All other banking regulators are charged with simultaneously protecting the safety and soundness of banks on one hand, while mandating fairness to consumers on the other. That's why, for example, excessive overdraft fees were allowed for years -- when regulators weighed the interests of making banks profitable against treating consumers fairly, they often chose the former. 

"They had a conflict of interest ... and often sided with bank safety over consumer protection," Mierzwinski said.

Zywicki, the CFPB critic, said he isn't fundamentally opposed to a consumer protection agency focused on financial products, but he says he believes evidence shows that Cordray's agency is acting recklessly.

"They made a political decision that the entire financial crisis was a consumer protection problem, ignoring evidence that there were other causes," he said. "I see no indication to date that they have a serious understanding of economics or unintended consequences. Sure, there are concerns about these products. People misuse mortgages. But their behavior to date raises questions about how seriously they take economic evidence."

He disagreed that payday and other non-traditional lenders had slipped through regulatory cracks before creation of the CFPB -- they were regulated at the state level, he noted. And even in this area, he said he was concerned about the new agency's actions against high-interest lenders. 

"The concern is the same, that they will blunder based on their belief in what's going on, rather than use sound economic science,” he said. “By over-regulating those products, they could drive them out of business and could end up hurting consumers. ... Before we had alternative lending products ... we had loan sharking. We could end up there again."

It works, or it doesn't

While Zywicki wouldn't mind a dismantling of the agency, his preference would be a radical restructuring, with Corday replaced by a slate of mixed-party commissioners with less power.

"The optimal solution is a more accountable, more reasonably constructed agency along the lines of the FTC," he said. "We've been doing independent regulatory agencies for a century, and we know what works."

But Mierzwinski said the housing bubble and the recession show that the system that was in place didn't work, and says he fears that a diluted CFPB wouldn’t be able to take firm action against the powerful financial services industry.

"We would lose … the one regulator that has protecting consumers as its only job," he said. "Payday lenders could run roughshod over American consumers again without the CFPB, and credit bureaus wouldn't be brought into line."

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CLARIFICATION: This story was updated Feb. 1 with additional information about Kathy Sandy’s Work Number disclosure report.

The Equifax credit reporting agency, with the aid of thousands of human resource departments around the country, has assembled what may be the most powerful and thorough private database of Americans’ personal information ever created, containing 190 million employment and salary records covering more than one-third of U.S. adults.

Some of the information in the little-known database, created through an Equifax-owned company called The Work Number, is sold to debt collectors, financial service companies and other entities.

"It's the biggest privacy breach in our time, and it’s legal and no one knows it’s going on," said Robert Mather, who runs a small employment background company named Pre-Employ.com. "It's like a secret CIA."

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Despite all the information Americans now share on social media and websites, and all the data we know companies collect on us, one piece of information is still sacred to most people: their salaries. After all, who would post their salary as a status update on Facebook or in a tweet?

But salary information is also for sale by Equifax through The Work Number. Its database is so detailed that it contains week-by-week paystub information dating back years for many individuals, as well as other kinds of human resources-related information, such as health care provider, whether someone has dental insurance and if they’ve ever filed an unemployment claim. In 2009, Equifax said the data covered 30 percent of the U.S. working population, and it now says The Work Number is adding 12 million records annually.

How does Equifax obtain this sensitive and secret information? With the willing aid of thousands of U.S. businesses, including many of the Fortune 500. Government agencies -- representing 85 percent of the federal civilian population, including workers at the Department of Defense, according to Equifax -- and schools also work with The Work Number. Many of them let Equifax tap directly into their data so the credit bureau can always have the latest employment information. In fact, these organizations actually pay Equifax for the privilege of giving away their employees' personal information.

Equifax turns around and sells some of this data to third parties, including debt collectors and other financial services companies. 

Equifax declined to be interviewed, but in an emailed statement to NBCNews.com, it confirmed that it shares "employment data" with debt collectors and others, and said it does so in compliance with Fair Credit Reporting Act guidelines. 

"In all cases, these entities must have a permissible purpose to request employment information," Equifax spokesman Timothy Klein said. 

He also said consumers give these third parties the right to access the data "at the time of application" for credit.

"A consumer grants verifiers (creditors) and their assigned debt collectors the right to verify employment should the consumer default on their account," he said. 

Data for debt collectors
Companies sign up for The Work Number because it gives them an easy way to outsource employment verification of former workers. Firms hate taking these calls, which usually come when a former employee is applying for a new job, because they are a costly distraction for human resources departments and open the firm up to lawsuits if someone says something disparaging about the former employee. So they contract with The WorkNumber, which automates the process. In exchange, firms upload their human resources data to The Work Number, which was part of an independent St.Louis-based firm named TALX until it was acquired by Equifax in 2007 for $1.4 billion.

The Work Number offers consumers some benefits. It provides an easy way for prospective landlords to verify an applicant's income, for example. Consumers tell the Work Number they want a one-time access code, which they then give to a landlord so he or she can verify that the potential tenant can really afford the apartment.

But The Work Number serves dual purposes. It’s also a massive database that Equifax monetizes in a variety of ways, despite the reassuring-sounding messages found all over TheWorkNumber.com.

"Can just anyone get my income information from The Work Number?" reads one passage. Answer: "No. You have to give someone authorization to get your income information from the service."

Employers who sign up for the service go to great pains to reassure workers that their data is safe and secret. Columbia University, when it explained to employees it was transitioning to The Work Number, posted this on the school's website:

"You are the only person who can authorize access to your salary information."

But Kathy Sandy of Sommerville, N.J. was surprised to find that a debt collector had accessed information from her report two years ago, something she learned only when she obtained her "consumer disclosure" from The Work Number. Because the data is considered a credit report, consumers are entitled to one free report every year. The report shows what data the report contains, and what entities have seen it.

Sandy's Work Number report, which she shared with NBC News, is 22 pages long -- an amazingly detailed history of every paycheck she had received for years. The first page of the report lists "verifiers who have requested your data in the past 24 months." On the list is "Pressler and Pressler," a law firm that specializes in debt collection. The firm had sued her in small claims court over a credit card debt that she says she was already repaying. It is not clear from Sandy’s report what employment data was shared with Pressler and Pressler; Equifax says it does not provide salary information to debt collectors, but it does provide other information.

"I found out debt collectors can access this information, which is strange," Sandy said. "I assumed with The Work Number, for that information, you had to have a (passcode) … but they got in, and got it somehow without my consent."

In brochures where Equifax advertises sale of the data, it's not shy about the source.

"The Work Number specializes in employment and income verification. It's direct from the source: the employer. It's current, as of the last pay period. It's delivered quickly -- on demand," says one brochure, titled "Portfolio Monitoring."

In his statement to NBC News, Klein confirmed that "pay rate" information is shared with third parties, including "mortgage, auto and other financial services credit grantors," as authorized under the Fair Credit Reporting Act.

He denied that salary information is sold to debt collectors, however.

"Debt/Collection agencies may request employment information -- which may be nothing more than verifying that a consumer is working where they say they are – if it qualifies under permissible purpose," he wrote. "Collections agencies are not provided salary information."

That contradicts an assertion made recently by Equifax CEO Richard Smith in 2009, when he talked about how detailed The Work Number data is.

"With FirstSearch and TALX we can provide information about a debtor’s location, income and employment," said Smith in an interview published on NYSE Magazine’s website, referring to The Work Number’s former parent company. "That can help prioritize which accounts to pursue first. If they’re employed, that business has a better shot at collecting what is owed to them."

Klein said Smith misspoke when describing TALX’s services, and reiterated that salary information on consumers is not sold to debt collectors.

'Unbelievably scary'
With or without the income data, The Work Number data is incredibly valuable to debt collectors -- and it may come as a surprise to many workers that their employers, directly or unwittingly, help debt collectors.

Equifax markets The Work Number specifically to student loan issuers. In another brochure on the firm's website, Equifax brags that The Work Number makes debt collectors' jobs easier.

"The Work Number produced a 5.5 percent lift in Right Party Contact and a 7.3 percent lift in Collections Resolution versus current skip-trace methods," the "case study" brochure says.

Equifax’s resale of The Work Number data doesn’t stop there. It also offers "portfolio monitoring" to financial firms who might want to market their products to consumers … or to get early warning on someone who might soon land in financial trouble. It calls this "proactive managing of risk." 

"The Work Number is part of our employment and income verification service. It provides continual track of changes to your customer or client portfolio, delivered on demand per your schedule," it says. "Simply submit a portfolio of customer or client accounts and The Work Number does the rest. ... Using The Work Number to stay abreast of employment changes can expand your ability to mitigate risk while maximizing product and service potential."

Mather has been in the employer data business for more than 20 years, and he says that if Americans suspected their employers were giving away their personal information to a credit bureau, they'd be shocked.

"The story here is how (The Work Number) is getting this information," he said. "When people find out, no respectable employer will continue to do this."

Larry Ponemon is a privacy expert who operates The Ponemon Institute, a consulting firm. He said he’d never heard of companies selling employer data to debt collectors.

"Are you joking? Oh my god, I'm shocked," Ponemon said when the business was described to him. "This is unbelievably scary. I consider payroll information very sensitive and private." In studies he's conducted, salary data is always among the information consumers say is most private.

"If the public knew about this, there would be such outrage," he said. "It's just ... really depressing."

Paul Stephens, director of policy and advocacy at the Privacy Rights Clearinghouse, had heard of The Work Number, but only because some consumers have complained to his agency that the data in its database is inaccurate. Some workers find that when they try to use the information for employment verification, their titles are outdated or otherwise misrepresent their work history, which can be embarrassing for a job applicant.

When told that the data is sold to third parties, he said he was under the impression the data was not shared.

"I think it is something that would be offensive to many people. One typically considers salary information to be shared by your employer just with IRS," he said. 

A glance at the language on The Work Number's website suggested to Stephens that the firm is legally within its rights to share the information, however.

"You get into the 'permissible purpose' doctrine," he said. "Debt collectors have a permissible purpose to look at your credit information. It was my impression that the data was only being given out when employees released it."

'Secret' process?
Data brokers are under heightened scrutiny in Washington, D.C., lately. There are two separate congressional investigations of the industry, and the Federal Trade Commission announced in December that it had begun an inquiry into how brokers obtain their information. Equifax received an inquiry letter from the FTC, but only for the data broker portion of its business involving non-financial data, such as criminal background records and address information.

Credit reporting agencies, such as The Work Number, are distinct from data brokers and are governed by special rules. Ironically, those special rules may open the door for Equifax -- and the credit-reporting side of its business -- to resell the salary information, says Katrina Blodgett, a lawyer with the Federal Trade Commission. She is one the agency’s experts on the Fair Credit Reporting Act. 

The FTC filed a case against TALX and Equifax in 2008 for allegedly failing to provide employers with sufficient notice about their disclosure responsibilities under the Fair Credit Reporting Act. Equifax admitted no wrongdoing and paid a small fine.  

Blodgett said the Fair Credit Reporting Act and subsequent updates give consumers specific legal rights, such as the ability to dispute errors in credit reports. But it also creates permissible purposes for access, including giving financial service companies the right to review credit reports of consumers they do business with. 

"It’s not as easy as it should be to say whether debt collectors can get your consumer reports, because it depends on the circumstance," she said, adding that she believed Equifax could have the right to sell the salary information to debt collectors because it is part of a credit report.

Much attention has been paid to the use of credit reports by human resource departments in recent years, and Congress gave job applicants special rights when a credit report is used during the job interview process. The reverse isn’t true, however, Blodgett pointed out.

"There are special restrictions on how credit reports can be used in hiring decisions, but there are no special restrictions on how employment reports (such as salary information) is used for non-employment purposes," she said.

She said she wasn’t surprised that Equifax is selling the information in The Work Number.

"They are a credit bureau. They sell credit information to lenders," she said.

Mather wants the sale of employee information halted. His firm also performs third-party employment verification, but he does not resell the data he collects.

"I strongly believe there is no reason to resell employee information to debt collectors without the permission of the employer and employee," he said. "This 'secret' process needs to stop. I hope eventually a simple law is passed making it required to get the permission of the employee BEFORE his information is resold. It simply should NOT be used for any other purpose except for employment purposes without permission. In my view, it is a betrayal of trust."

Consumers who want to see what information The Work Number has on their employment history can visit this page on the TheWorkNumber.com. While reports are available online, consumers may have to fill out a form and mail it to The Work Number in some cases.

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I had just borrowed about a quarter-million dollars and my question was simple: "How do I pay you back?"

The woman on the other end of the phone, however, couldn't tell me. Ten days had passed since I signed the papers to refinance my home and, with the holidays approaching, I was worried my first payment would be late. She tried to soothe me with perhaps the most misunderstood phrase of the refinancing process: "Don't worry. You get to skip a payment."

Had I listened to her, it would have cost me thousands of dollars. And if you are one of the millions of homeowners who will refinance in 2013, it could cost you, too. 

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If your new year’s resolution is to save money or get control of the family budget, refinancing remains a really good option. But the idea that “skipping” the first payment can be pain free, financially speaking, is a myth, repeated over and over by loan officers like mine. Sometimes they are lying, sometimes they are misinformed and sometimes they are just trying to get an annoying borrower like me off the phone. But with rare exception, they are giving bad advice.  (News flash: Whenever a bank seems to be doing you a favor, it probably has a hand in your wallet.)

Real estate transactions are already confusing enough. There are questions surrounding when you make your last payment on the old loan, when you make your first payment on the new loan, how many extra days of interest you pay toward both your old and your new loan, and when you are paying for both loans. We'll get to those tricky issues in a moment, but the priciest mistake you might make in a refinance is also the simplest one to correct. 

You've heard this before, but this time, it's probably true: mortgage interest rates are at historic lows, and there may never be a better time to refinance.  It's hard to imagine rates going any lower than the 3 percent range they are at now, but it's easy to imagine that, at the first signs of a real economic recovery or real inflation, they will climb sharply during 2013.  The low interest rates that the Federal Reserve has imposed to boost the economy have been punishing for many, notably savers, who can barely earn 1 percent interest on their bank accounts and certificates of deposit. The one perk for consumers from the Fed’s interest rate policy is the ability to get cheap home and auto loans. If you haven't refinanced your mortgage in the past 24 months or so, you are missing out.

Fortunately, many American homeowners have gotten the message. According to the Mortgage Bankers Association, mortgage holders engaged in $1.3 trillion worth of refinancing in 2012. In fact, more than four out of five new mortgages in 2012 were refinanced loans, not home purchases.

I wish there were a way to know how many of those borrowers chose to skip that first payment.

'Can I get that in writing?' 'No'
My loan officer was lazy, I believe, and -- knowing that my loan had closed and all the commissions were guaranteed -- just wanted me off the phone as soon as possible. My call was unusual.  I am always overly cautious when I set up any kind of new loan payment, as the chances for error are great: a wrong loan number on a check, a bad address, etc. So I always make the first payment early to make sure nothing goes wrong.  That good habit proved profitable this time.

When I signed my loan papers, there were no payment instructions in my closing documents (not terribly unusual). My loan officer said I would receive payment coupons later.  But when 10 days passed, and I heard nothing, I called. She sent me to the bank's customer service line, where I was informed that there was no record of my loan. (Did that mean I didn’t have to pay it back? Sadly, No.) Customer service transferred me back to my loan officer. She assured me that their computers would catch up to my urge to pay the loan, and I’d get payment information soon. Incredulous that they seemed not to want my money, I persisted. She tapped a few keys on her keyboard, made me wait a minute, then told me that my loan had funded on Dec. 5, so I didn't have to make a payment until Feb. 1.

"But my documents say repayment begins Jan. 1," I said. "So you're saying there will be no late fees if I don't pay Jan. 1?"

"Yes," she said.

"Can I get that in writing.?”

"No. I can't do that."

At that point, I did what any mature consumer would do: I laughed. And then I muttered something about the 100 pieces of paper they just made me sign, with innocuous documents putting the finest point on everything you can imagine, like the form I initialed in multiple places agreeing that, yes, I am known by Bob, Robert, Bobby, Robby and various other nicknames. Yet I couldn’t get the bank to put something in writing saying when I should make my loan payment?

My loan officer didn't laugh, but eventually she put me on the phone with a supervisor who sounded very grave. She'd done additional research, she said, and found out that the reason customer service couldn't find my loan was because it had already been sold to another bank. We called that bank together and found out my loan actually funded on Nov. 30, so my first payment was indeed due on Jan. 1. And I would have been liable for about an $80 late fee if I had listened to my loan officer. The manager profusely apologized.

Steep penalty anyway
But I'm not writing to warn you about late fees. There's a much bigger culprit here you have to worry about.  Had I followed my loan officer's advice and skipped a payment, even if the bank waived the late fee (which the manager said was likely), I would have paid a steep penalty anyway.  You've probably guessed the punch line: there's no such thing as skipping a payment. In reality, homeowners are borrowing that money and extending the loan term for an extra month.  The payment will be tacked onto the end of the loan, with interest.  How much? If it's a conventional loan, that’s 30 years’ worth of interest.  Effectively, you are borrowing one month's payment for 30 years. Ouch!

"Skipping is a misnomer. A better description would be ‘deferring with additional interest added,'" said Jack Guttentag, a professor emeritus at the University of Pennsylvania who also runs a consumer education website called MortgageProfessor.com. 

Just how much extra interest can skipping that first payment cost you? There are too many variables to create a decent rule of thumb. But here's an illustration from Guttentag's site with deliberately round numbers. Skip the first payment of $500 on a $100,000 loan at 6 percent, and you will pay an additional $2,993 in interest during the 30 years.

Forget the $75 late fee. That's real money. As Guttentag puts it, "a payment that is miniscule to one is a fortune to another."

Some loan officers say they only won't offer the "skip-a-payment" option unless the refinance closes toward the end of the month, when the homeowner might have trouble coming up with the extra cash for closing costs and a fresh mortgage payment close together.  Others say they offer it all the time.

To be clear: Most borrowers don’t actually complete their 30-year loans before moving or refinancing, so few would end up paying that high a penalty. Also, it's important to note that my bank didn't even hold the loan, so they weren't profiting from the “skip-a-payment” advice.  I believe this is usually a lazy mistake, not a greedy one. Still, the basic truth holds.  Don't be tempted to skip a payment when you refinance unless you really, really need the cash for some unusual expense (Christmas credit card bills are probably not the best reason.)

Skipped payments are not to be confused with other loan closing related interest payments, including:

*Your last payment on the old loan. You can't skip that, either. If your loan closes near the end of the month, you should still make the scheduled payment to your old bank. Why?  Interest is actually paid in arrears, meaning you pay at the end of the month the cost of borrowing the money for that month.  It's confusing, because mortgage payments are really two payments at once -- last month's interest and next month's principal.  To keep it simple, if your loan closes on the Nov. 30, you will be paying November's interest with your Dec. 1 payment, along with December’s principal. You won't need to make the December principal payment if you refinance on Nov. 30, but most folks pay far more in interest than principal because they are early in their loan's term, so the overpayment won't be large. Just pay it to avoid late fees, and enjoy any refund that comes your way. 

*Pre-paid interest. When your loan closes in the middle of the month, your new bank will make you pay up-front (as opposed to in arrears) daily interest for the remaining days of the month. If you close on the 20th, you'll pay 10 more days of interest payments.  That's OK, it means you won't owe the money on the back end of the loan.

*Money for nothing: The three-day (or more) overlap. There's an odd quirk in most refinancing deals in which there are several days when the homeowner will be paying interest on the same loan to both banks. In most states, consumers have a three-day "right of rescission" after signing their refinancing papers, meaning they can cancel the new loan if they get buyer's remorse.  Such regret laws are very consumer-friendly and are necessary because of nefarious loan officers who tricked consumers into bad deals in the past. But, in this case, the consumer-friendly law is also costly, as it means both banks have liability for the loan during that rescission period, and are both entitled to collect interest.  Note: The regret period is usually three business days, so if your closing stretches over a weekend, the double-interest period can be even more costly.

It's important to keep all these quirky, refinance-related interest payments straight when talking to your loan officer, so you'll know what to do when he or she suggests you can skip a payment. None of this should scare you away from refinancing, which is really the only way you can make the recession work for you.

But remember, you are refinancing to save money, and you probably shopped around trying to save $50 here or $100 there on closing costs; don't lose thousands of dollars because of one false move after closing.

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The economy is so bad in Argentina that the government recently said it would start taxing overseas credit card purchases. It also demanded that banks report all credit card transactions -- foreign or domestic -- saying the data would be used to find tax cheats.

Even George Orwell couldn't have imagined this meeting of Big Brother and Big Data: a handy database of every single purchase made by citizens, ready to be categorized and analyzed by the government.  Let your mind wander for a moment and you can imagine the disturbing possibilities of a government so invasive that it knows when and where you buy milk and bread. 

The obvious question: Could it happen here?  There are grand cultural and economic differences between Argentina and the United States, but if the history of privacy tells us anything, it is this: Governments and corporations can rarely resist the temptation of using technology to gain the upper hand.

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"This gives me chills," said Gartner banking consultant Avivah Litan, who was in Argentina recently consulting with that nation's government banking officials. "I think it is a reminder that our data can be looked at by anyone and probably is being looked at."

Argentina is not the first government to examine credit card receipts. In 2011, Brazil began taxing overseas credit card transactions. And Spain recently outlawed cash transactions over $2,500, a tactic that forces consumers to use traceable, electronic purchasing tools for big-ticket items. 

Big Brother is not behind these drastic measures. In Argentina, where only about 50 percent of the population buys with plastic, a currency crisis and high inflation have led to a dramatic rise in overseas purchasing. Taxing foreign purchases is an attempt to stem this tide, and encourage domestic spending. Brazil's motivation is similar. 

But once the pipeline for data is established and the database is built, what's to stop mission creep? Argentina has said it will examine domestic transactions for evidence of undeclared purchases or other signs of tax evasion. What else could a government find in a database of transactions?

"When I first saw the story it kind of took my breath away," said Bill Hardekopf, who operates the credit card information website LowCards.com "I thought, 'Oh my, a government can track the purchases of every one of their citizens?' " 

There is a way to avoid becoming a line item in a government credit card transaction spreadsheet: pay with cash, something one in two Argentinians still does. But in the U.S., cash has become passé. Last year, only 27 percent of point-of-sale purchases were made with cash, compared to 66 percent for credit and debit cards, according to Javelin Strategy and Research, which expects that number to dip to 23 percent by 2017.  

Meanwhile, a host of new payment tools -- still rough around the edges -- are about to find their way into consumers' pockets and purses. Mobile cellphone payments are coming of age, with a quarter-trillion in annual transactions expected by 2016, according to IE Market Research.  And even the simplest of cash transactions -- "Buddy, can I borrow $5?” -- might not be long for this world.  Starbucks recently partnered with Square, a simple tool that allows cellphone users to accept casual payments from friends or small business clients. The convenience of such tools is undeniable; so is their traceability.  

"As we become more and more of a cashless society, the likelihood of purchases being tracked increases. Whether that is used for negative purposes, or will cause personal privacy issues, I don't know, but I can see the possibilities," Hardekopf said. 

But could it happen in the U.S.? Hardekopf said he had trouble imagining Washington could get away with the Argentinian tactic. He believes privacy interest groups would scream, other safeguards would kick in and the U.S. population just wouldn't swallow it.

But there are no laws preventing this kind of information sharing between banks and government agencies, Litan points out. Law enforcement officials routinely obtain personal information, such as cellphone locations and credit card receipts, during the course of criminal investigations.

"The (U.S.) government does have access to this information now because it regulates the banks," she said. "There's no secrecy laws like there are in Switzerland. There's no privacy laws that would prevent this."

Dan Mitchell, an economist at the libertarian Cato Institute, said there have already been attempts by both state and local governments to more broadly obtain detailed consumer financial data. The health care reform bill included a provision that required merchants to report credit card processing volume data to the IRS, for example.  And recent efforts by states to enforce sales tax on online purchases will necessitate detailed reporting on credit card transactions by merchants, he warned.

“So it's just a question of expanding the existing set of Orwellian laws,” Mitchell said.

Probably the strongest firewall against such an intrusion would be banks themselves, which would no doubt fight massive data requests.  But transaction data sharing from banks to government officials has risen sharply since the Sept. 11, 2001, terrorist attacks. The number of Suspicious Activity Reports filed by banks with their federal regulators has soared from 281,000 in 2002 to 1.5 million in 2011 (.pdf), according to the Financial Crimes Enforcement Network. Much of that increase can be attributed to a rise in mortgage fraud, but it demonstrates a dramatic increase in cooperation between banks and government officials. There also is a long history of federal authorities buying access to large troves of consumer data – such as the one once operated by commercial data broker ChoicePoint, now owned by the same firm which operates Lexis-Nexis.

That's why privacy expert Rob Douglas says that Argentina's data sharing is not an isolated incident.

"Given the explosion in the collection and retention of personal data by governments around the world under the guise of national and economic security, I fear the Argentine model is where all countries - including the U.S. - will end up under one scenario or another," he said. "After all, government by its very nature constantly seeks to know more about the governed. With the ever-expanding ability to store and sift vast amounts of personal data, it's inevitable that governments will do so unless reined in by the governed."

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 More from Red Tape Chronicles:  

 

• Industry group says cellphone bills are shrinking; is yours?
• When you and your employer split, who gets friends and followers?
• Mom forces TSA to shell out $3.99 for confiscated peanut butter
• Why your next 'Passw0rd' may not be a password
• Airlines charge passengers 'you-get-to-sit-with-your-kids' fee
• Revealed: The real source of Apple IDs leaked by Anonymous
• The truth comes out: CEO says 'stupid' consumers deserve big fees
• Firms' deletion of online critiques draws cries of 'censorship'
• Poll: Cellphone users dump apps to spare privacy, then lose phones
• At Tampa convention, protesters can carry guns, but not puppets

 

 

 

 

When you're watching the first presidential debate Wednesday night, don't believe what you see. Online, that is. As Mitt Romney and Barack Obama make their inevitable slip-ups and fact-challenged assertions, bring your well-trained skepticism to every computer, cell phone and tablet screen near you.

Jokes that seem to catch fire on their own -- remember Clint Eastwood's invisible Obama from the Republican convention? -- might not be quite so organic. Twitter themes that seem to be everywhere might not be popular so much as purchased. And stinging one-liners that show up in your streams and news feeds might make you chuckle, but they are probably half-truths, and most definitely not a great tool for picking the leader of the Free World.

Even if you aren't on Twitter, virtually all political reporters are, and they increasingly take their cues from it. This is the first presidential election in which social media will play a mainstream role, and it's important to remember not everything is as it seems online.

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Four years ago, Facebook and Twitter had only just begun to capture the world's imagination (Pew says that 10 percent of the electorate used social media in 2008 to research candidates, and Twitter was scarcely 2 years old on election night). But with this election cycle, the social media giants are now key outlets for candidates to transmit their messages to voters. While social media may appear to offer unfettered, uncontrollable discussion of candidates and their positions, the campaigns are hard at work learning how to manipulate the tools to their advantage. And there's added spice to the Internet element of this season's presidential campaign -- because social media is so new, rules of engagement are lacking.

For example, Barack Obama famously held a surprise virtual town hall on Aug. 29, offering to take questions from Reddit.com users, embracing that site's standard "Ask Me Anything" (AMA) format. The event was unusual because it occurred during the height of the Republican National Convention, breaking the well-established convention that candidates don't upstage each other during their opponent's convention. Obama almost certainly wouldn't have held a traditional press conference that day -- but a Reddit AMA?  Who's to say that was a violation of unwritten politicking rules? When suspicion arose that questions from the AMA might have been less spontaneous than they first appeared, many observers chimed in with cynical reminders that real-world town halls and press conferences also include plants. Who's to say what rules should apply on Reddit?

About the same time, Romney's campaign made what is believed to be the first major campaign purchase of a "sponsored hashtag," attempting to corral discussion on Twitter around the topic "#AreYouBetterOff?" Simultaneously, a parody Twitter account named MexicanMitt was temporarily suspended. A month or two earlier, Romney's number of Twitter followers shot up by a surprising amount. Are such hashtag purchases tasteful? Was suspension of the account coincidental? Is it fair to purchase followers? Again, the online rules aren't clear. 

There is little argument that Obama's campaign, which held an exclusive on grass-roots Internet campaigning last time around, holds a major advantage over Romney on Twitter and Facebook. Some of that is pure demographics -- new Web tools skew younger and more liberal. But some of it is the result of well-timed sarcasm campaigns. Each time Romney trips over his tongue, you can be sure a cascade of social media comedy  -- a "meme," in Internet lingo -- will follow. Sometimes, that's an organic outpouring of creativity. Sometimes, that's the work of an Obama supporter like Matt Ortega. He told Salon earlier this year that he was behind a website named "EtchASketchMittRomney.com," which appeared almost immediately after top Romney aide embarrassingly said that the candidate's campaign positions in the GOP primary could be easily changed, as if they were written on an Etch-A-Sketch. Ortega said he owns dozens of other similarly sarcastic websites, all powered by the pickup they get on Twitter and Facebook. Ortega is a Democratic consultant, but swears the sites are unpaid hobby work.

Turning candidates into punch lines
There's certainly nothing wrong with being funny. Obama's Reddit chat didn't break any rules; neither did Romney's Twitter advertising. But is social media a free-for-all? Perhaps, said Brad Phillips, a media consultant who runs MrMediaTraining.com. But he's not convinced that social media has made things worse. Campaigns have always stretched the rules -- and the truth -- to get any advantage possible, he said.

"Think about the Willie Horton ads (pillorying Michael Dukakis in 1988). So many others," Phillips said. "If the Internet existed in those campaigns, would they have used online tactics? Of course." Nor would campaign managers from elections past have fretted about scheduling a virtual press conference during an opponent's convention, he said. In some ways, he's surprised there hasn't been much evidence presented yet of "dirty tricks" online, such as the whisper campaign during the 2000 primaries alleging that John McCain had an illegitimate child.

On the other hand, Twitter and Facebook have created one huge new avenue for attack, Phillips said -- the power of humor. Once upon a time, the biggest threat to a candidate could be a misstep so bad that it became fodder for late-night TV humor on Johnny Carson's "Tonight Show."

While that's still true -- an unplanned appearance on David Letterman's Top 10 List can really hurt -- Twitter and Facebook allow campaigns to create their own late night butt-of-joke moments without needing a comedy writer to see it their way. It's easy to argue that the real damage from Clint Eastwood's halting Republican Convention speech came from the hours of sarcastic Tweets and Facebook discussions that began before Eastwood even finished speaking.

"In the past, you knew a crisis had jumped the firewall when it appeared on late night TV as a joke....that meant the issue had gone beyond being just a story for political types," Phillips said. "You wonder if same dynamic is played out now online. If you can make a candidate a punch line (in social media) you've scored a hit."

Phillips also said sarcastic memes could slowly but surely wear down a candidate's chances, cumulatively building and impression that "a candidate is a joke," which would be hard to counteract.

"Is that clean (campaigning)?" he asked. "I don't know. But in future political cycles, I believe candidates will have to pay a lot more attention to this."

Clean or not, University of Virginia professor and presidential politics expert Larry Sabato has been sharply critical of both campaigns -- and political reporters -- for getting caught up in what he calls the "Gaffe Game." Hunting for the next one-liner is a poor way to evaluate presidential candidates, he says.

"When we tire of Gaffe Game, let's have a POTUS Spelling Bee. Would be about as revealing," he said recently in his own Twitter feed.

Scoring points through sarcasm is hardly new, but Sabato believes social media has indeed accelerated the gaffe obsession in this election cycle.

"Many people are on (Twitter) for hours every day. Do they make it worse? Is the pope German? They drain every gaffe of every ounce of meaning and political advantage," he said. "Every time a candidate has a blunder or tongue-twister, Twitter explodes with commentary defending and deriding the candidate."

On the other hand, there is hope, Sabato thinks. Social media seems to accelerate the news cycle, too, meaning that gaffes come and go quicker than they would in the past.

"They … destroy the gaffe quickly -- it burns itself out on Twitter faster than it would otherwise," he said.

Campaign zingers now 140 characters?
So does social media help or hurt the election process? Naturally, it's impossible to say. But it's important to note that voters shouldn't be fooled by what might seem like more personal connections offered by candidates through Facebook "Likes," "personal" e-mails and Tweets. In Phillips' impression, candidates are far more sterilized and prepackaged than ever.

"The candidates are so carefully controlled, access to them is controlled, they are trying to prevent any kind of YouTube moment. (Candidates' moves) are planned within an inch of their lives," he lamented. It's hard to believe that only five presidents ago, reporter Sam Donaldson and President Ronald Reagan sparred during fairly spontaneous press conferences. And vice presidential candidate Geraldine Ferraro spent two hours answering reporters' questions about her tax returns.

Today's candidates usually hide behind carefully orchestrated digital personas, lobbing one-liners over the wall in an attempt to slowly move the needle on the small number of undecided voters who will swing the election.

"Candidates are giving away the ability to have a knockout fantastic answer," he said. "They are just trying to advance in inches not in yards," he said.

That raises the discouraging possibility that the key to who wins and who loses on Nov. 6 could be which candidate comes up with the best joke that fits in 140 characters or fewer.

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 More from Red Tape Chronicles:

• Mom forces TSA to shell out $3.99 for confiscated peanut butter
• Why your next 'Passw0rd' may not be a password
• Airlines charge passengers 'you-get-to-sit-with-your-kids' fee
• Revealed: The real source of Apple IDs leaked by Anonymous
• The truth comes out: CEO says 'stupid' consumers deserve big fees
• Firms' deletion of online critiques draws cries of 'censorship'
• Poll: Cellphone users dump apps to spare privacy, then lose phones
• At Tampa convention, protesters can carry guns, but not puppets

 

You know about airline change fees, baggage fees, premium seat fees and food fees. But how about a "you-get-to-sit-with-your-child" fee?

John Parish is giving his 5-year-old daughter the birthday present every child dreams of: a trip to Disney World. But he's afraid American Airlines has booked a travel nightmare for his family and other fliers. There's only one way out of the nightmare, he was told: Pay an additional fee, months after booking the trip.

Parish bought his tickets months ago, in March, and scored three seats together on a flight from Dallas to Orlando, Fla., for his wife, Amanda, and daughter, Megan. Then, in July, bad news arrived. American Airlines had changed the flight schedule for the return trip, and it had changed the plane, too. It was a bigger plane, but no longer could the family sit together. In fact, Megan had been moved onto the other side of the plane, rows away.

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Parish, himself a frequent business traveler and American customer, thought that it was a simple mistake and that a quick phone call could correct the problem. After all, who wants a 5-year-old separated from her parents on a three-hour flight? Parish was only half-right.

There were three seats together, an American customer service agent told him. But the only way he could get them was to pay $60 in extra fees for what was now considered premium seating. Parish was outraged. But a discussion with a supervisor got him nowhere.

"What bothers me about this situation is that they are trying to charge me for something I already had paid for because they changed flight schedules," he said. "I know it's only $60, but this is a little extreme. ... It's not fair when it is literally their fault because they are changing their schedule, but they put the onus of the cost and change on the consumer."

Amanda Parish said the family had booked the trip a full seven months in advance specifically to ensure that they'd all be able to sit together.

"As a mother, I couldn't imagine letting my child fly next to a stranger," she said. "It really does feel like a bait-and-switch. At the very minimum, you should get what you paid for. ... We already paid for seats together. The point of going on vacation is to actually be together."

John Parish sent a letter to customer service asking for a response and an explanation; he got neither. Then he contacted NBC News.

American Airlines spokeswoman Mary Frances Fagan told NBC that she was "sorry that the Parish family encountered difficulties" but that a change in aircraft type can alter seat assignments.

"When aircraft changes occur, the computer tries to re-accommodate our passengers in the same seats — or close by — to those they held before the swap," she said. "In this case, one of the seats needed to keep all three members of the family together was not automatically available."

She said families that are separated in situations like this should talk to gate agents and flight attendants, who "work closely with passengers who want — or need — to fit together."

Consumer advocate and travel expert Chris Elliot says complaints about children being separated from parents are increasingly common as airlines have gotten better about flying near-full aircraft and as they increasingly turn to premium tiers and other fees for seating arrangements. Usually, however, flight attendants work with passengers to make sure kids aren't flying alone.

"The last thing anyone wants is a child separated from their parent for a nine-hour flight," said Elliot, the parent of three small children. "No one wants to be seated next to someone else's 2-year-old."

Generally, a combination of airline employee cajoling and passenger volunteers straightens out the mess, he said.

But the crush of new airline fees — including fees to guarantee seat assignments — has created an added layer of frustration to the parent-child separation drama.

"There's a perception that airlines are holding parents hostage. They're saying: 'If you don't pay the fee, we can't guarantee you'll be seated with your kids. So shell out the extra $60," Elliot said.

Elliot recommends that parents not pay the fee and demand seats together when they arrive at the gate. Passengers have to put up a fight on such issues, he said.

"In essence, the airlines are playing a game of chicken with passengers, and I would not blink first," he said. "I wouldn't pay the $60. I would show up at the airport early and say, 'Look, we've got a family of three, and we want to sit together,' and see what happens." Nearly always, parents get their way, he said.

In July, Citizens for Responsibility and Ethics in Washington became the latest group to ask federal regulators to step in and forbid airlines from separating children and parents on planes. Rep. Jerrold Nadler (D-N.Y.), also in July, introduced the “Families Flying Together Act of 2012.” Elliot thinks the sentiment is good, but he warns that the issue isn't as simple as it sounds.

"I'm concerned when the government starts to regulate things like this and thus have to define what a family is," he said. "What about couples who aren't married, for example? Would they have right to demand to sit together as families?"

The solution to the problem of ever-more-creative fees, Elliot said, is a more comprehensive determination of what consumers get for their ticket purchase.

"The Department of Transportation is going to have to step in and define what an airline ticket is and what it is not," he said. "Soon, they may charge for the ability to use a restroom. Is the emergency oxygen not included in the price? It's time to say enough is enough."

Parish said that, if he had to, he planned to trade seats with his daughter so she could fly next to Mom during the flight home. It's an obvious, if not optimal, solution.

"That will be all right, but it's the principle that bothers us," he said. "I enjoy sitting next to my wife when I fly. We're on vacation. There is value to sitting next to your spouse or significant other."

Despite the seat shenanigans, his daughter is still excited about the upcoming trip.

"She's been going nuts about it. Her grandparents just threw her a Disney-themed birthday party," Parish said.

Hopefully, they'll enjoy the trip home, too. After NBC's call to American Airlines, Fagan said that she had called a ticketing expert and had placed the three together again, free of charge.

Asked what advice she’d give to other passengers in the Parishes' situation, Fagan said this:

“I'd tell people who want — or need — to sit together to talk with the agents at the counter when they get to the airport and when they get to the gate.  As you know, some seats — including bulkhead and exit row seats — aren't given out until prior to departure and agents have some flexibility to make seating changes to accommodate passenger desires. Flight attendants also are helpful in seating people together if they are aware that families need to sit together."

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Yankee fans root for a first-place team and usually watch their heroes win when they visit the new Yankee Stadium in New York. But fans of the Bronx Bombers have recently lost something too, something many sports fans around the country will probably lose soon: the right to sue the team for damages if there's a terrorist attack. Meanwhile, another team can claim victory every time the Yankees take the field -- tort reform advocates.

In July, Yankee Stadium became the first sports facility to earn the coveted federal "Safety Act" designation. That means the facility has passed a battery of tests and won approval from the Department of Homeland Security, so the Yankees have been granted a wide-ranging immunity from future lawsuits that might stem from terrorist attacks.

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Dozens of defense companies have been named to the Safety Act approved list since DHS started handing out the designation in 2004. But Yankees Stadium is the first of what is expected to be many sports venues whose operators will then be immune from standard lawsuits that might be filed by future victims of terrorist attacks. (The National Football League was placed on the Safety Act list in 2008, but the designation was vague and probably only applies to the Super Bowl, experts say.)

 

Supporters say the Safety Act gives strong incentives for firms to raise their security standards, and encourages innovation. Opponents say it unfairly terminates a basic consumer right, makes people less safe and serves as an under-the-radar version of tort reform. As evidence, opponents point out that the Safety Act framework is being copied for many other legislative initiatives, including the failed effort to pass a comprehensive Cybersecurity Bill this year.

It's the mother of all liability waivers, says George Washington University law Professor Ellen Zavian, an expert in sports law. But the question is, do fans know about it?

"There's waivers on ticket stubs … but I haven't seen any waivers that state, 'Oh by the way  … we can waive (liability) for terrorism attacks.'" Zavian said. "How did this get under the radar? Are people really supportive of that? I think attendees should know what they are waiving when they enter a facility, and I don't think they do."

The Safety Act (SAFETY is actually an acronym for "Support Anti-Terrorism by Fostering Effective Technologies") was passed as part of the legislation that created the Department of Homeland Security in 2002. And that's part of the problem, argues John Bowman, director of federal relations for the American Association for Justice.

"Clearly this was done in haste after 9/11," he said. "It was a fear-driven time. There was dramatic tort reform. It's fair to say these tort reformers took advantage of that moment. ...We disagree with the way the law is structured. We think it's not very helpful for fans if something happened."

The law would clearly be helpful to the Yankees if something happened. A report by the European Organisation for Security, which is helping the European Union consider similar terrorism-related tort reform, says that $40 billion in private claims was paid out by insurers in the wake of 9/11, with billions more in claims still unsettled. The Safety Act would prevent many such lawsuits after a future 9/11-style attack.

'A marketing edge'
But the law does much more than offer the civil equivalent of a get-out-of-jail-free card, supporters argue. Bob Karl, who operates SafetyActConsultants.com and has helped dozens of companies achieve certification, says liability protection is absolutely essential for companies deploying newfangled anti-terrorism technologies. Companies are concerned that with each new gadget they deploy, they incur new liability, he said.

Karl gave the example of a company that had invented a new radioactivity detector for cargo containers on ships. Selling the detectors would be, initially, a tiny $10 million annual business for the multibillion-dollar company, but the firm feared that if something went wrong with its product, victims could sue for the entirety of the firm's value. It makes no sense for companies to take on risk like that, and the firm didn't start selling its detectors until it achieved Safety Act designation, he said. He declined to name the firm.

"It's very real concern, and Congress had that concern when it passed the law," he said.

With Safety Act protection, companies can afford to deploy unproven or newer technologies, knowing their risks are lower, he said. That makes everyone safer.

Also, he insisted, the Office of Safety Act Implementation, which grants the certification, has very high standards, and firms become safer merely by taking on the process.

"The fear is there would be some kind of double-secret handshake and they would just hand these things out. … Well, that's not how it happens," he said. Many applications take years before they achieve final approvals. "I had one application recently that was 5,000 pages long," Karl said.

Meanwhile, Safety Act designation can give smaller companies, "a marketing edge," he said. "It's kind of like a Good Housekeeping seal of approval."

But even Karl agrees that the Safety Act was "tort reform at a very high level." Safety Act designation makes it impossible to sue a company after a terrorist attack for standard negligence – a ticket-holder bringing in an explosive device in a purse that wasn’t detected during standard bag inspection by entrance guards, for instance. But it also grants a host of other legal rights. Victims who wish to pursue legal action after a terrorist attack can only do so in federal court; joint and several liability (in which any involved party can be liable for an entire disaster) is eliminated, which reduces firms' exposure; and there is a ban on punitive damages on interest accumulation related to any potential judgment. Victims cannot sue for negligence; the only way to pierce Safety Act immunity is to prove fraud during the application process, or actual malice by the company.

Another concern expressed by opponents is that the definition of a terrorist attack is left vague by the law – essentially, a terrorist attack is anything the Department of Homeland Security calls a terrorist attack, which could include domestic terrorism, such as the Oklahoma City bombing in 1995 or even the recent Aurora, Colo., mass shooting.

One likely outcome of Safety Act protections could be lower insurance premiums for companies involved, thanks to caps on costs that could arise from a terrorist attack.

Bradley Shear, a civil litigation attorney and opponent of the Safety Act, said he didn't understand what was in it for fans.

"I think this is well intentioned, but can it equally protect businesses and the average consumer?" he said. "In return for the liability shield, what is the public getting? Are Yankees tickets going to be cheaper because they've been able to obtain Safety Act (designation)? Will the cost of a hot dog or a beer be any less?"

Or, as another opponent of the legislation said, has it just created a new consulting industry that earns millions helping companies navigate the Safety Act application process? A quick search of Google shows there is indeed a thriving industry in Safety Act consulting.

David McWhorter, a consultant at Catalyst Partners in Washington D.C., which helped the Yankees with its Safety Act application, said critics have a misunderstanding of the approval process. Most companies are forced to raise their insurance coverage by the Office of Safety Act implementation, he said, adding that he couldn’t think of a single case where firms were allowed to reduce their coverage. And insurance firms aren't yet offering security firms the equivalent of a "good driver discount," either.

In other words, they're not getting Safety Act coverage to save money today, he says. They do it because they become safer through the process, and because they want cost certainty.

"It's important for a facility to get a pre-emptive cap on liability," he said. "For any venue that has met the Safety Act standards, patrons can feel assured they are among the best of the best when comes to security. It’s a win-win for the public and for that venue."

McWhorter said when companies approach him for help with their application, he generally spends a lot of time consulting on how to improve the firm's security guard hiring and training processes. He also helps companies set up "red team" exercises -- mock attacks  -- to prepare them for the rigorous Homeland Security evaluation. 

"It's not inexpensive to provide security to a venue that holds 10,000 to 60,000 people," he said. "You have to consider hiring, training, exercises, cameras, alarms, mass notification systems, definition of the command structure, metal detectors, the auditing process, and so on." 

Sticking out like a sore thumb
Browsing the list of Safety Act designated technologies on the Department of Homeland Security's website, visitors see a list of both familiar and unfamiliar names: ADT Security, Unisys and Securitas are listed alongside Massachusetts-based Ahura Scientific, for example. Many of the approved technologies are what you might expect: In March, American Science & Engineering got approval for X-Ray inspection systems; the aforementioned Ahura – which recently changed its name to Thermo Scientific -- lists handheld devices that identify chemicals using "Raman spectroscopy."

On such a list, the Yankees stick out a bit like a sore thumb.

"New York Yankees d/b/a The New York Yankees Baseball Club provides The New York Yankees Security Program," the Safety Act office announcement says. "The Technology is a comprehensive integrated security system, which is comprised of physical and electronic security measures, tools and procedures designed to detect, deter, prevent, respond to and mitigate Acts of Terrorism at Yankee Stadium during Game Day, Non-Game Day (In-Season), Non-Season and Special Events."

One of these things is not like the other, complains Bowman.

“When you look at the law -- it's for makers and suppliers of technology," he said. "That was their intent, not to protect ballparks and give them a get-out-of-jail-free card, as long as they didn't lie ... during the approval process.”

The Yankees did not respond to a request for comment.

McWhorter says that sports venues are good candidates for Safety Act protection because they host major events that attract attention, and need incentives to go "above and beyond" standard levels of security.

"Yankee Stadium is not unlike the Cincinnati airport, the Stock Exchange, the NFL, or Super Bowl venues, all of which have received Safety Act protection," he said. "The regulations for the Safety Act are very clear that the (Department of Homeland Security) secretary has great flexibility in approving applications. Nevertheless, one criterion is, to paraphrase, 'To get Safety Act protection, you must demonstrate the need for Safety Act protection.'… The Safety Act incentivizes activities like vulnerability assessments and security upgrades, whereas without it some people might simply ignore threats in order to avoid any culpability."

Bowman said he didn't have a fundamental disagreement with the notion of encouraging invention of terrorism-fighting technologies, but feared that the Yankees designation proves the Safety Act is now casting a far wider net than originally intended. That's not a mistake, he thinks: Tort reformers try to gain more ground each time Congress takes up an industry issues or security issues, he said.

"We see this over and over in what we do. The first thing industry asks for are liability protections," he said, citing this year's cybersecurity bill as an example. "But if they are not accountable, they aren't responsible and no one is ultimately safe."

Karl, the Safety Act consultant, said he believes the Safety Act does make America safer, as all manner of security improvements are a standard part of the application process. He expects many more sports teams to apply -- and to receive -- Safety Act designation in the coming months and years, and he plans to pitch sports teams and facilities with his consulting services.

"The law is definitely working the way it's intended to," he said. "The Safety Act protects technologies that deter or respond to or mitigate a terrorist attack. … That makes us all safer."

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In the ugly battle of Web users vs. insurance companies, a lot of blood was spilled this week.

We've known for a while that hell hath no fury like an Internet user scorned. But at the intersection of social media, consumer frustration, anxious lawyers and heavy-handed regulations you'll find a particularly tricky corner of the Web. Insurance firms, which have always been a magnet for complaints anyway, lie at precisely this crossroads.  

Increased competition has led insurers to employ high-profile marketing gimmicks, like geckos or touchdown dances, in an effort to become household names with friendly reputations. That means it's become necessary for them to establish a social media presence. Progressive's "Flo" character, for instance, has her own Facebook page, with hundreds of thousands of fans. But inviting social dialogue sometimes means inviting trouble, as Flo and her handlers found out the hard way this week.

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Progressive encountered a Twitter revolt after the family of a woman killed in a car crash wrote a blog post criticizing the way the firm fought to avoid paying a claim. The post went viral, and the insurance giant then compounded its problems by spitting out automated tweets in response.

Experts who talked about the incident this week said Progressive fell into a trap that often catches large companies as they stumble around the social media world.

"The original response sounded genuine," said Jason Falls, a digital marketing consultant who helped health care firm Humana set up its social media program. "But the fact that they auto-responded the same statement to multiple people showed it was just a copy-and-paste job. More often than not, when that happens, it's not the technology that's to blame. You can blame it on the legal and compliance teams saying, 'You can say this and only this.' It makes you look cold and insensitive."

Both sides have willingly joined the insured-vs-insurers Internet fight. Insurance firms increasingly use the Web as a weapon against fraud, while consumers band together to demand better service, or to appeal denials of coverage. Both can claim victories. There are plenty of stories of insurance investigators who catch disability recipients bragging about completing triathlons on their Facebook pages or tweeting about a great trip to Paris while claiming depression. Meanwhile, earlier this month, a social media firestorm caused Aetna to back down and agree to cover colon cancer treatment costs for an Arizona patient who'd already exceeded his lifetime cap. A flurry of angry tweets really can make a big company reverse course.

'Shame on you'
Fall said he's used to seeing nasty comments pile up on insurance company blogs, Facebook pages and in Twitter feeds.

"It does make me cringe, but I also think it comes with the territory," he said.

It doesn't take long to find cringe-worthy comments on insurance company social media sites. Even days after the initial Progressive firestorm, comments left on Progressive's otherwise happy "Flo the Progressive Girl" Facebook page were dominated by vitriol: "Shame on you," says one. "Has Flo ever wondered why Progressive tries to get killers off the hook?" says another. Many writers called on the actress who plays Flo to quit.

Flo's hardly alone, however. When American Medical News did a survey of health insurance Twitter accounts last year, it found a never-ending stream of complaints:

*"Dear Cigna: How about, for the new year, you do something radical - like processing claims without 500 phone calls from me?"

* "Dear Humana, you've ruined my day. Worse, my wife's day. Way to CYA. I'm paying you to cover mine."

*"@Anthemhealth, so far u didn't send me my ID cards … kept me on hold for 25 mins and ur site isn't lettng me register. Nice service."

Insurance, necessarily, involves rejection. When you are in the business of frequently disappointing people, and making sure your rejections are lawsuit-proof, it's nearly impossible to run a free-spirited social media shop. Rachel Poor, who runs the social media marketing firm Thread Communications, said all heavily regulated industries face the Progressive dilemma.

"I think social media is still a sort of an enigma (to them). They all want to be there, they are told they should be there, but these companies are not used to people talking back to them in such a public forum," she said. "Ultimately, I think it will require insurance agencies to change the way they do business.”

Greg Matthews, a director at social media consulting agency WCG in Austin, said insurance companies often have to go into a Twitter or Facebook fight with one hand tied behind their backs.

"Particularly in health care or financial services, there are privacy-related issues that you just can't discuss," he said. For example, if a patient complains about an uncovered medical procedure, the insurance company can't publicly talk about the patient. "People want you to be transparent and authentic all the time, but you just can't. ... It can be terribly frustrating.”

Falls said companies he works with expect the occasional public flogging after turning on a Twitter account, and they manage to survive by planning ahead.

"The thing I've tried to do with any client opening up its customer service channels -- you have to have a crisis communications plan mixed with a customer service plan," he said.  "You have to anticipate what will happen. ... Companies that dive in without a plan of attack for those situations are finding it difficult."

No stiff upper lip?
Automatic and formulaic responses have gotten many companies through old-fashioned media crises, Falls said. For example, journalists are often tolerant of canned answers, he noted -- but they typically don't fly on social media. If a Twitter response doesn't sound like it's written by a real person in response to a real person, the company is likely going to take a hit to its reputation. On the other hand, when million-dollar settlements might be at stake, no insurance company lawyer is going to be comfortable with a social media employee free-lancing responses. So Falls suggests a middle path.

"You have to have a lawyer on staff who can be on call and help your social media team craft communications in crisis situations," he said. "When you have a big publicity problem, you have your legal team working hand-in-hand with PR. Why wouldn't you do the same thing in the social media world?"

In general, he recommends that firms post a detailed, formal response on a website, and instruct their social media writers to tweet or post links to it, while adding personal notes separately. 

There are challenges, however: Many lawyers and companies don't have the stiff upper lip needed to ride out a social media crisis.

"Any industry that's heavily regulated will always have a layer of legal and compliance teams that have to be trained, and have to buy in," he said. "It can be done with the right legal team. But if you have a team that constantly says ‘no,’ it'll never work."

Matthews said effective social media must also be fast, and that's often unfamiliar territory for insurance firms.

"It means really changing processes that companies use. Rather than convening the executive committee for two days to make a decision about things, boil it down to the two or three people who can actually make a decision in hours and not days," he said.

It also means knowing who the influencers are in certain topics ahead of time, and planning to engage those people immediately when a crisis hits.

"It's not that hard to know these days who are the folks likely to be influential in this conversation," Matthews said. "You know what the top 10 issues that you might face are, and you know who is likely to be the most influential when those stories break, the people who might take your side or be opposed. ... Ask yourself how do you engage them. What is the content you can bring to bear that articulates your position rather than letting the public run wild. You can never control the conversation, but you can make sure your side is heard."

Finally, and most important, companies have to actually deliver on their promises, perhaps in a way they never have before, Matthews said. If a Twitter user complains and is asked to call customer service by a social media worker, that customer service experience had better be positive, Matthews warns. Otherwise, the angry consumer will have heavy new ammunition for waging a social media war.

"It really helps you find your skeletons in the closet," he said. "You have to have a mindset that you are grateful your customers are telling you what you are doing wrong, and you have the opportunity a chance to fix it. I know a lot of companies, maybe most companies, don’t feel that way, but that’s the only way to be successful in social media.”

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It sounds like one of those crazy rumors you get in an e-mail from a friend: "Did you hear? They're going to tax the Internet!" Only this time, it's true.

The days of tax-free shopping are quickly drawing to a close for all except those willing to drive to places like Delaware or Oregon. A two-front assault on Web shoppers is in full force — Congress is considering legislation that would pave the way for states to force sales tax on point-and-click shoppers, and Amazon.com is making numerous one-off deals with individual states, where it will be collecting taxes no matter what Congress does. Together, these two developments make an Internet sales tax all but inevitable.

For years, brick-and-mortar stores were at an incredible disadvantage to online retailers that could offer tax-free shopping. If you are a fair-minded person, it's hard to muster an argument that this situation — in which online shoppers enjoy a 5 percent to 10 percent "discount" because they point and click instead of drive or walk — was anything but unfair. 

On the other hand, despite all the word games being played by all the interested parties — the Senate version of the legislation is called the "Marketplace Fairness Act" — there is only one way to describe why your online shopping bill is about to go up: a new tax.

---

The National Conference of State Legislatures says states stand to gain $23 billion in new revenue when online sales tax collection kicks in. That's $23 billion the states weren't collecting before, and $23 billion you weren't paying before. Texas and New York residents will pay about $1.8 billion more; Californians, $4.2 billion. That's real money.

To boil it down, Forrester Research says the average U.S. online shopper will soon spend $1,700 annually — so the changes will cost each one about $125 every year. 

That's $125 in new taxes you’ll be paying. It's $23 billion our state governments will have to spend that they currently don't have. Of course, very few are willing to say the "T" word out loud. George H.W. Bush learned that lesson for every future politician when his "no new taxes" pledge ended up defining his career. So you won’t hear supporters admitting it’s a tax.

"It's not a tax issue. It's a collection issue," David French of the National Retail Federation told me. He's senior vice president of government relations at the federation, which supports the legislation. French is right, strictly speaking. You probably know that consumers who don't pay sales tax when they buy a TV on Amazon.com are supposed to pay a "use tax" later to their own state governments. And you probably also know that almost no one does that. In the sparse data on use tax you'll find, you'll see a 2009 study that shows that 0.3 percent of California residents reported use tax on their income tax filing. Maine, by the way, wins the crown for most honest taxpayers, with 9.8 percent paying use tax that year. 

"I don't want to say they are breaking the law, but I will say they are avoiding application of the law," said French.

So strictly speaking, the states would simply be getting better at collecting that which they are already owed.

"Americans want to see that the taxes that are due are paid before anyone's taxes are increased," French said.

Inevitable
I'll invite you, readers, to come up with your own analogies, but here's mine: If tomorrow, every state in the nation hired a bunch of new state troopers and began giving out speeding tickets to everyone driving 56 mph in a 55-mph zone, I'd call that a new tax. When everyone has done something for years without sanction, it's no longer illegal. Suddenly enforcing an unenforced law is the same as passing a new law; suddenly enforcing an unenforced tax is a new tax.

It's a testament to our tortured relationship with governing that such a straightforward debate leads to such intense obfuscation. One Net sales tax supporter I spoke with on background started to say, "People agree that everyone should pay their fair share," but then caught himself, fearing he had just made an enormous verbal gaffe. Talking about "fair share" triggers an entirely different debate, he feared. One reason the U.S. is floundering is our inability to even speak clearly to one another, so laced with vitriol is our marketplace of ideas.

So I'll speak plainly: It's a new tax — you'll be paying more to the government than you do today — unless governors who institute the tax agree to cut some other tax by an equal amount. Perhaps they could lower the overall sales tax rate by a fraction of a percentage point so the Internet sales tax is really a neutral event on consumers? Unless your state does something like that, don't let your politicians get away with campaign claims that taxes haven't been raised.

The real question, of course, isn't about the word "tax." The real question is: Is an Internet sales tax fair? On that issue, there's just no argument. If there's a sales tax, there's no reason online shoppers should be exempt.

"If it were up to retailers, we would abolish sales tax," French said. But since it has to be collected, it should be applied equally to all retailers, he argues. The legislation "corrects a discriminatory treatment of some retailers over others."

The federal Net sales tax law has gained a lot of momentum. At a Senate hearing Wednesday and a House hearing last month, there was surprisingly little pushback. Sen. Jim DeMint, R-S.C., leads the opposition and wrote an op-ed piece in The Wall Street Journal on Wednesday making the federalism case — he argued that e-commerce firms in California shouldn't have to obey out-of-state laws. The argument rings pretty hollow in our ever-connected world. 

Meanwhile, even some Republicans with sterling conservative reputations — like New Jersey Gov. Chris Christie — have come out in support of the Marketplace Fairness Act. Still, it almost certainly won't pass during this election season. There are only a couple of days of legislating remaining before Congress enters full-time campaign mode, and I promise that no one will campaign on an Internet sales tax platform. 

No matter. Amazon is taking all the anxiety out of the political conversation, anyway. It is slowly adding sales taxes to shoppers' purchases around the country — Texans just started paying when they check out at Amazon.com; in September, California residents will, too. (Amazon, as explained in detail here, is willing to give up its sales tax advantage because it plans to build distribution centers around the country in an effort to offer same-day shipping and slay brick and mortar shoppers that way.) 

Ten states in all will be taxed by next year. By then, so much of America will be used to paying sales at the world's largest Internet retailer that it will hard to muster opposition to a federal Internet sales tax law. And French believes both Mitt Romney, a former governor, and Barack Obama would sign a law passed by Congress.

In other words, it seems inevitable: You're going to pay more to shop online. If you don't like it, don't fight the Internet sales tax – fight your state's sales tax policies. An Internet sales tax is only fair.

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