If you’ve been paying attention to the open banking conversation in the US, you are aware that it is currently on the cusp of a major shift. In July, the Consumer Financial Protection Bureau (CFPB) filed a surprise motion to pause the legal battle over its Section 1033 data access rule. The Bureau then announced its plans to rewrite the rule altogether, and initiated a call for public comments.
The purpose of Section 1033 is to align principles on how consumers access and share their financial data. The rule essentially stands as the legal backbone of open banking in the US. For its part, the CFPB’s role is to define the technical and legal framework behind the mechanics of consumer data access. The Bureau is tasked with creating standards for data access, consent, and security.
The public comment period ends tomorrow, October 21, but writing a new rule will likely be anything but smooth. Aside from the various viewpoints from opposing stakeholders, which complicates the CFPB’s effort to write a fair ruling for all parties, there is now another wrinkle in the story. Last week, White House budget director Russell Vought said on a podcast that he wants to close down the CFPB. If the CFPB were indeed dismantled, would open banking stall or survive?
When the public comments period ends tomorrow, the CFPB will begin drafting the new open banking proposal. Further complicating the matter, the rewrite is unfolding alongside ongoing litigation over the original rule. The Financial Technology Association (FTA) is defending the rule in court after the Trump administration moved to overturn it back in May. In September it argued against an effort by the Bank Policy Institute to keep the rule on hold indefinitely, saying that big banks are trying to limit how much authority the CFPB has over open banking in hopes of shaping what the new version of the rule will look like.
Between the drafting of the new rule and all of the litigation, the next six-to-twelve months are pivotal in steering the open banking conversation. And yet, even as the rule is being rewritten and argued over in court, a much bigger question looms: what happens if the CFPB itself disappears? If Vought’s comments are correct and the CFPB is indeed completely dismantled there are a few likely scenarios of what may happen moving forward:
Regulatory limbo
With no agency to finalize or enforce 1033, the rule could be delayed or stalled indefinitely. This delay would slow technological adoption and would make open banking once again driven by the market, instead of regulation.
In fact, for years, banks and fintechs have been building API-based data-sharing frameworks and forming independent networks such as FDX, which unifies the financial industry around a common standard for the secure and convenient access of permissioned consumer and business data.
In the absence of regulatory guardrails, however, big banks could set the terms of data access and possibly introduce unreasonable fees or restrictive policies. Additionally, smaller fintechs could be squeezed out, which would ultimately reduce consumer choice. As a result, the US would have a more industry-controlled version of open banking instead of a consumer-centric model.
Reassignment
The authority to shape, finalize, and enforce 1033 could shift to other agencies such as the FCC or OCC. Swapping agencies, however, may create jurisdictional confusion since neither agency has a direct consumer-data mandate. This confusion may lead to slower adoption and reduced technological innovation.
If federal leadership falters, however, individual states may step in to organize their own regulations. States like California or New York may end up writing their own data-sharing laws. This would result in a patchwork of regulations, increasing compliance costs and complexity, especially for new fintechs seeking to compete. In theory, Congress could pass national open banking legislation, but bipartisan agreement on financial regulation (or any regulation) is rare.
Wiping out the CFPB will not wipe out the underlying law, Section 1033 of the Dodd-Frank Act of 2010. However, even though the law would continue to stand on its own two feet, the rulemaking, enforcement, and coordination around the law could be thrown into disarray. If the rulemaking is stalled for too long, it is likely that we will see individual states take matters into their own hands.
Photo by Bernd 📷 Dittrich on Unsplash
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