1. “Fintech and the Innovation Trilemma”
Full Working Paper Available on SSRN (forthcoming Georgetown Law Journal 2018)

2. The Theory (As in Life, Rules are about Choices)

3. The Theory (Cont’d)
When regulators prioritize market safety and clear rulemaking, they necessarily must do so through broad prohibitions, likely inhibiting financial innovation.
Alternatively, if regulators wish to encourage innovation and provide rules clarity, they must do so in ways that ultimately provide simple, low intensity regulatory frameworks, increasing risks to market integrity.
Finally, if regulators look to promote innovation and market integrity, they will have to do so through a complex matrix of rules and exemptions, heightening the difficulties of compliance, international coordination and enforcement.

4. Historical Examples

5. Fintech Exacerbates the Trilemma (This time it is Different)
Big Data
Automation
Gatekeeper Disintermediation
Not only is more information stored online but the pace of data-creation and its rapid availability to those seeking it has accelerated exponentially. Importantly, unlike in earlier decades, where information on underlying loans or mortgage-backed securities was sourced through central nodes of information, like credit rating agencies or conventional news organizations, the production of digital data is often decentralized. By storing data in the cloud, freeing up local computing capacity , a fintech firm can deploy analytical resources to volumes and varieties of data that would have been unavailable to earlier generations  Professors Brummer and Yadav: Consider a further explanation of how storing data in a cloud frees up local computing capacity. Does local data storage detract from overall computing capacity?
Collectively these developments are enabling the production of not just more data than in the past, but also new kinds of meta and secondary data not previously accessible (or in existence). Fintech firms can scour the internet, including social media and cellphone records for insight into customers. The cloud can help create secondary data based on the analysis and mining of original data. Further, by introducing networked communities, blockchains present the possibility of qualitatively new metadata based on the verifications performed on original data and its analytics. A thicker informational market can also lead to efficient outcomes for regulators.
But there are also reasons for caution. First, regulators and market participants face high analytical costs in cleaning, collating, interpreting and handling vast stores of data. Finding statistical connections and meaning within large datasets is far from straight-forward

6. Big Data
Not only is more information stored online but the pace of data-creation and its rapid availability to those seeking it has accelerated exponentially.
The production of digital data is often decentralized.
Blockchain enables decentralized data entry and verification
Collectively these developments are enabling the production of not just more data than in the past, but also new kinds of meta and secondary data not previously accessible
But: higher informational gathering costs; not all is accurat

7. Automation
Using AI, algorithms now routinely  perform tasks and produce outcomes that appear “smart,” mimicking human-like feats of logic and deduction  
AI has enabled technology to near fully automate the trading process. Algorithms are programed to make real-time, trade-by-trade determinations about what to buy and sell — in milliseconds
Machine learning algorithms are programmed to re-program themselves over time in response to new data and the external validation garnered by their performance
Crypto-currencies are building AI into their protocols to offer users a means of automating payments and value transfer
Machine learning is deployed in roboadvising to tailor investment strategies
First, the proper workings of algorithms depend on the input of clear, correct and code-able data

8. Gatekeeper Disintermediation
Advances in big data and machine learning have made it easier than ever for firms to cull information from alternative data sources.
Through online platforms, P2P and equity crowdfunding firms are developing new infrastructures designed to render irrelevant or by-pass certain services of intermediaries like banks or securities underwriters
Fintech firms can thus help connect startups with seed capital through lending or crowdfunding (or perhaps even ICOs). By harnessing big data, algorithms and AI, firms are increasingly linking services and products directly with consumers, whether they be investors, entrepreneurs needing capital or borrowers

9. Exacerbation of the Trilemma
Less proven technology and less resilient upstarts create greater uncertainty for markets and financial stability
Operational risk, fake data, bad data, infrastructure integrity at issue
This risk is difficult to measure, and difficult to oversee
New rules needed to ensure market integrity in an age of AI and machine learning
New rules for data processing, quality control, and cybersecurity are given subject matter increasingly complex, creating greater compliance costs impacting financial innovation

10. Regulatory Responses Informal Guidance Pilots Licenses
Regulatory “Sandboxes”

11. Informal Guidance No-action letters (ad hoc) Agency “Guidance”
Policy statements
NO comment letters
the SEC can clarify its position to a market participant about whether it considers a proposed line of action to be in breach of securities rules and/or likely to elicit an enforcement action. Such letters offer specific market participants (as well as, sometimes, the industry at large) guidance on the future permissiveness of the SEC regarding a specific course of action

12. Pilots
Regulators can design or oversee tests involving new innovations or techniques to observe outcomes, and then tailor rulemaking to its most efficient and effective form
Common in China with capital account rules, but used periodically in the United States
In October 2016, the SEC began its two-year pilot program to experiment with “tick sizes,” or the price increments in which the buying and selling price of stocks is quoted on national exchanges (See also CFPB’s Project Catalyst)

13. Licenses
Regulators can grant discrete licenses allowing relevant firms to engage in specified activities, though under highly controlled and restrained circumstances
One Model: Bright line approach
Under the JOBS Act, the SEC has issued rules permitting start-ups to issue equity securities to ordinary people through the medium of the internet so long as they meet minimal, specified disclosure requirements.
Bright line rules
Legal certainty
But: Possible over and under inclusiveness
Alternative Model: Ad hoc licenses
OCC’s Fintech Charter explicitly refrains from articulating how, in practice, it “will evaluate, supervise, and examine” applicants

14. Regulatory “Sandboxes”
Rather than be subject to restrictive or complex rules that elevate regulatory risk and potentially stifle innovation, the sandbox offers a means of testing new ideas in a simplified, interactive regulatory environment.
Instead of operating within the usual silos operating in financial regulation – separating securities regulation from banking, for example – developers can build cross-sectoral inventions within the controlling parameters of the regulatory sandbox

15. Regulatory Sandboxes (Cont’d)
The UK’s FCA has created an “Innovation Hub” operating as incubators for new businesses
Ontario Securities Commission: LaunchPad aspires to offer a way for fintech firms to engage with the regulator to navigate an uncertain regulatory environment in bringing new products to the market
Australian services market regulator, the Australian Securities and Investments Commission (ASIC) offers a broad, 12-month licensing waiver to fintech companies to test out financial services and credit-based innovations
US Treasury Department has called for a US Regulatory Sandbox initiative, though none in place

16. Navigating the Regulatory Frontier
Domestic Agency Coordination
Limits of Multiple Peaks
International Standard-Setting
Bilateral MOUs
IOSCO and Basel Initiatives
Private Sector Involvement
Lexicology
Norm creation
Enforcement