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Financial Services Law Insights and Observations

FSOC report highlights AI, climate, banking, and fintech risks; CFPB comments

Privacy, Cyber Risk & Data Security Bank Regulatory FSOC CFPB Artificial Intelligence Banks Fintech

Privacy, Cyber Risk & Data Security

On December 14, the Financial Stability Oversight Counsel released its 2023 Annual Report on vulnerabilities in financial stability risks and recommendations to mitigate those risks. The report was cited in a statement by the Director of the CFPB, Rohit Chopra, to the Secretary of the Treasury. In his statement, Chopra said “[i]t is not enough to draft reports [on cloud infrastructure and artificial intelligence], we must also act” on plans to focus on ensuring financial stability with respect to digital technology in the upcoming year. In its report, the FSOC notes the U.S. banking system “remains resilient overall” despite several banking issues earlier this year. The FSOC’s analysis breaks down the health of the banking system for large and regional banks through review of a bank’s capital and profitability, credit quality and lending standards, and liquidity and funding. On regional banks specifically, the FSOC highlights how regional banks carry higher exposure rates to all commercial real estate loans over large banks due to the higher interest rates.

In addition, the FSOC views climate-related financial risks as a threat to U.S. financial stability, presenting both physical and transitional risks. Physical risks are acute events such as floods, droughts, wildfires, or hurricanes, which can lead to additional costs required to reduce risks, firm relocations, or can threaten access to fair credit. Transition risks include technological changes, policy shifts, or changes in consumer preference which can all force firms to take on additional costs. The FSOC notes that, as of September 2023, the U.S. experienced 24 climate disaster events featuring losses that exceed $1 billion, which is more than the past five-year annual average of 18 events (2018 to 2022). The FSOC also notes that member agencies should be engaged in monitoring how third-party service providers, like fintech firms, address risks in core processing, payment services, and cloud computing. To support this need for oversight over these partnerships, the FSOC cites a study on how 95 percent of cloud breaches occur due to human error. The FSOC highlights how fintech firms face risks such as compliance, financial, operational, and reputational risks, specifically when fintech firms are not subject to the same compliance standards as banks.

Notably, the FSOC is the first top regulator to state that the use of Artificial Intelligence (AI) technology presents an “emerging vulnerability” in the U.S. financial system. The report notes that firms may use AI for fraud detection and prevention, as well as for customer service. The FSOC notes that AI has benefits for financial instruction, including reducing costs, improving inefficiencies, identifying complex relationships, and improving performance. The FSOC states that while “AI has the potential to spur innovation and drive efficiency,” it requires “thoughtful implementation and supervision” to mitigate potential risks.