Wagner, Hill, Hagerty, Rounds Slam SEC’s Predictive Data Proposal, Demand Answers to Disastrous Rule

Washington, D.C. – Congresswoman Ann Wagner (R-MO), Chair of the Financial Services Subcommittee on Capital Markets, along with Congressman French Hill (R-AR), Senator Bill Hagerty (R-TN), and Senator Mike Rounds (R-SD) today sent a letter to Securities and Exchange Commission (SEC) Chair Gary Gensler demanding answers on the SEC’s misguided proposal that will harm broker-dealers, investment advisors, and Main Street investors.

They said: “While it is promoted as an investor protection measure, the Proposal’s true intention seems to be rewriting existing and well-functioning SEC regulations, such as Regulation Best Interest (“Reg BI”) and the fiduciary standard. This is likely to result in a burdensome, one-size-fits-all approach being imposed on all broker-dealers and investment advisers, irrespective of the technology they utilize.  This new, untested standard would apply indiscriminately, whether or not firms provide personalized investment recommendations or advice to their customers….If the SEC’s goal is to replace Reg BI and the existing fiduciary standard with the Proposal’s heightened “best interest” standard, it should be transparent and direct about its actions. It should not rely on the recent attention around predictive data analytics or artificial intelligence as a pretext. Furthermore, if the SEC intends to assume the role of a technology regulator, it should seek explicit authority from Congress.”

Read the full letter here.

Background
On July 26, 2023, the SEC proposed a new rule that requires broker-dealers and investment advisors, irrespective of their size, to confront challenges posed by predictive data analytics (“PDA”) and related technologies like artificial intelligence (“AI”). While technological innovation has significantly enhanced the financial industry’s capabilities in auditing, reporting, recordkeeping, trading, and surveillance, the SEC’s proposed rule, despite claiming to be technology-neutral, appears to be fundamentally hostile to these advancements. The SEC’s proposed rule casts a broad net over what constitutes “covered technology,” encompassing any “analytical, technological, or computational function, algorithm, model, correlation matrix, or similar method or process that optimizes for, predicts, guides, forecasts, or directs investment-related behaviors or outcomes.” This sweeping definition includes not only advanced technologies like AI, machine learning, and neural networks but also basic tools that broker-dealers and investment advisors commonly employ in their operations, potentially even extending to electronic calculators and abacuses. The compliance burden associated with these rules is expected to be substantial, particularly for smaller firms striving to leverage technology for competitive advantages.