SEC passes new ‘conflict of interest’ rules governing how brokers can use AI

The United States Securities and Exchange Commission (SEC) approved a set of sweeping changes to the rules governing the use of “optimization functions” by brokers in a committee vote on July 26.

We have an upcoming @SECGov Open Meeting on July 26 | 10am ET

We’ll be discussing:
1⃣Cybersecurity Risk Management, Strategy, Governance, & Incident Disclosure
2⃣Use of Predictive Data Analytics
3⃣Exemption for Certain Internet Advisers From the Prohibition Against Registration

— Gary Gensler (@GaryGensler) July 20, 2023

During an internal meeting streamed on the SEC’s website, Chairman Gary Gensler invoked everything from his disdain for the color green to his feelings on romantic comedies while advocating for the changes that essentially seek to prohibit brokers from using “optimization functions,” or data analytics tools, to their benefit.

A fact sheet published on the SEC website on July 26 states that the “covered technology” includes “a firm’s use of analytical, technological, or computational functions, algorithms, models, correlation matrices, or similar methods or processes.”

The fact sheet states that the use of the covered technologies could constitute a conflict of interest through any investor interaction or communication, “including by exercising discretion with respect to an investor’s account, providing information to an investor, or soliciting an investor.”

Commissioner Mark Uyeda pointed out during the discussion that laws already existed covering the myriad potential conflicts of interest that could arise between brokers and the investors they represent. Uyeda ultimately declined to support the proposed rule changes.

Gensler acknowledged the existing rules but added that the shifting technological landscape called for an update.

In defending the need for change, Gensler related a story about his childhood:

“My mom used to dress my identical twin brother Rob in red and me in green. You say, ‘Rob Red, Gary Green.’ I might not act as favorably to green prompts. I love [my mother], but maybe a little too much green for me.”

Citing his personal disdain for green and disclosing to the panel that he’s “kind of a rom-com guy,” Gensler appeared to relate that his personal preferences — something ostensibly discoverable via predictive data analytics — were analogous to a broker using data to target and lure potential investors.

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The proposal passed in a 3-2 vote along party lines, with Commissioner Hester Peirce dissenting alongside fellow Republican Uyeda.

As it stands, the rules updates would only apply to cryptocurrency and digital assets transactions made through a broker-dealer registered with the SEC.

According to the SEC, “no crypto asset entity is registered with the SEC as a national securities exchange (like, for example, the New York Stock Exchange or the Nasdaq Stock Market). And no existing national securities exchange currently trades crypto asset securities.”

Next, the updates will be published in the Federal Register. Citizens will have 60 days from the document’s publication to submit comments before the committee holds a final vote.