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If this were a Hardy Boys book, it would be The Hardy Boys and the Mystery of the Porn Stars’ Disappearing Bank Accounts.
Last month, porn star Teagan Presley told Vice that JPMorgan Chase & Co. closed her account because the bank considered her “high-risk.” Then, on Wednesday, porn director David Lord told the Daily Beast that Chase sent him a letter notifying him that the bank was going to close his account on May 11. The Beast and Vice suggested that a secretive Justice Department program, “Operation Choke Point,” was behind the account closures. But a Chase insider familiar with the matter says that the initiative has nothing to do with the termination of these accounts.
“This has nothing to do with Operation Choke Point,” the source told Mother Jones. “There’s not a targeted effort to exit consumers’ accounts because of an affiliation with an industry [and] we have no policy that would prohibit a consumer from having a checking account because of an affiliation with this industry. We routinely exit consumers for a variety of reasons. For privacy reasons we can’t get into why.”
The porn stars’ allegations play into a narrative—pushed by banks and congressional Republicans—that the Obama administration is overstretching its authority by forcing banks to police the free market. Here’s the real story:
What is Operation Choke Point? Operation Choke Point is a federal initiative that aims to crack down on fraud by honing in on banks and payment processors—the companies that serve as middlemen between merchants and banks on credit card transactions. Financial institutions are not supposed to do business with companies they believe might be breaking the law. But Justice Department officials suspect that some payment processors ignore signs of fraud—like high percentages of transactions being rejected as unauthorized—in transactions they process, and banks go along for the ride, earning massive profits.
The Justice Department has already filed one lawsuit under the program. In January, the government sued Four Oaks Bank in North Carolina, charging that it “knew or was deliberately ignorant” that it was working with a company that processed payments for merchants who were breaking the law. According to the lawsuit, Four Oaks worked with a Texas-based payment processor that processed about $2.4 billion in transactions on behalf of fraudulent payday lenders, internet gambling entities, and a Ponzi fraud scheme. The processor then allegedly paid Four Oaks more than $850,000 in fees. (In April, Four Oaks reached a $1.2 million settlement with the government, but did not admit wrongdoing.)
President Obama’s Financial Fraud Enforcement Task Force, headed by the Department of Justice, is behind the program. Michael Bresnick, who runs the task force, made the program public last March. He says that the aim is to “close the access to the banking system that mass marketing fraudsters enjoy—effectively putting a chokehold on it.”
Is this the first time that feds have asked banks to keep an eye on their customers? No. The Bank Secrecy Act of 1970 requires financial institutions to assist the feds in preventing money laundering, which includes scrutinizing customers. However, banks argue that Operation Choke Point goes further than that law.
Does Operation Choke Point include a “blacklist” of businesses or individuals the government is requiring banks to target? Not exactly. Last September, the Federal Deposit Insurance Corporation issued updated regulatory guidelines noting that “facilitating payment processing for merchant customers engaged in higher-risk activities can pose risks to financial institutions.” A footnote in the guidelines linked to a list of products and services, published in 2011, that the feds say have been associated with high-risk activity, including get-rich products, drug paraphernalia, escort services, firearm sales, pornography, and racist materials. But the September guidance makes clear that financial institutions that “properly manage these relationships and risks are neither prohibited nor discouraged from providing payment processing services to customers operating in compliance with applicable law.” In other words, the guidance requires banks to perform due diligence to prevent fraud, but does not require banks to go on a porn-star witch hunt.
Why are some people saying Operation Choke Point discriminates against low-income Americans? As part of the program, the feds are scrutinizing payday lenders, which offer short-term loans at high interest rates. Critics of these lenders say they take advantage of low-income Americans, while defenders note that they’re often the only option for Americans unable to get loans elsewhere. Some states restrict or ban payday loans. But as payday lenders move online, they’ve been able to skirt state rules, according to the Justice Department. The feds hope to crack down on payday lenders that are not complying with state and federal regulations. “This effort is focusing on ensuring that lenders are not using electronic payment networks to commit fraud or offer products that would not otherwise be permitted,” says Tom Feltner, director of financial services at the Consumer Federation of America, a national association of nonprofit consumer advocacy groups.
Who opposes the program? Banks, payday lenders, gun owners, conservatives, and some Democrats have expressed opposition to the program. Frank Keating, president and CEO of the American Bankers Association, wrote an op-ed in the Wall Street Journal last month accusing the Justice Department of “forcing banks to make judgments about criminal behavior and then holding them accountable for the possible wrongdoing of others.” Jason Oxman, chief executive of the Electronic Transaction Association, which recently released guidelines for payment processors, told the Washington Post that Operation Choke Point shouldn’t target entire industries, and should instead focus on specific bad actors. A new lobbying group, the Third Party Payment Processors Association, opposes Operation Choke Point, and an activist group called “StopTheChoke.com” is running an online campaign against the program. The NRA, after receiving concerns from gun owners that the DOJ is using the program to take away their guns, said last week that “it will continue to monitor developments concerning Operation Choke Point.”
On January 8, Reps. Darrell Issa (R-Calif.) and Jim Jordan (R-Ohio) sent a letter to the Justice Department arguing that “the extraordinary breadth of the Department’s dragnet prompts concerns that the true goal of Operation Choke Point is not to cut off actual fraudsters’ access to the financial system, but rather to eliminate legal financial services to which the Department objects.”
Who supports it? Quite a few Democrats support the program. On February 26, Sen. Jeff Merkley (D-Ore.) and Rep. Elijah Cummings (D-Md.) sent a letter to the Justice Department recommending that the program continue. The letter, cosigned by 11 other Democrats, including Sen. Elizabeth Warren (D-Mass.), said: “The Department plays a critical role in ensuring system-wide compliance with anti-fraud, anti-money-laundering, and related laws, especially as they apply to the unique risks associated with our payments system, and we urge the Department to continue its vigorous oversight.”
Diane Standaert, senior legislative counsel for the Center for Responsible Lending, notes that eradicating fraud is also a win for consumers. “Banks should have a vested interest in making sure their own customers accounts aren’t being abused or unnecessarily drained,” she says. “By complying with this existing guidance, it’s a win-win.”
