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AI and the SEC Whistleblower Program

Tax farming is the practice of licensing tax collection to private contractors. Used heavily in ancient Rome, it’s largely fallen out of practice because of the obvious conflict of interest between the state and the contractor. Because tax farmers are primarily interested in short-term revenue, they have no problem abusing taxpayers and making things worse for them in the long term. Today, the U.S. Securities and Exchange Commission (SEC) is engaged in a modern-day version of tax farming. And the potential for abuse will grow when the farmers start using artificial intelligence.

In 2009, after Bernie Madoff’s $65 billion Ponzi scheme was exposed, Congress authorized the SEC to award bounties from civil penalties recovered from securities law violators. It worked in a big way. In 2012, when the program started, the agency received more than 3,000 tips. By 2020, it had more than doubled, and it more than doubled again by 2023. The SEC now receives more than 50 tips per day, and the program has paid out a staggering $2 billion in bounty awards. According to the agency’s 2023 financial report, the SEC paid out nearly $600 million to whistleblowers last year.

The appeal of the whistleblower program is that it alerts the SEC to violations it may not otherwise uncover, without any additional staff. And since payouts are a percentage of fines collected, it costs the government little to implement.

Unfortunately, the program has resulted in a new industry of private de facto regulatory enforcers. Legal scholar Alexander Platt has shown how the SEC’s whistleblower program has effectively privatized a huge portion of financial regulatory enforcement. There is a role for publicly sourced information in securities regulatory enforcement, just as there has been in litigation for antitrust and other areas of the law. But the SEC program, and a similar one at the U.S. Commodity Futures Trading Commission, has created a market distortion replete with perverse incentives. Like the tax farmers of history, the interests of the whistleblowers don’t match those of the government.

First, while the blockbuster awards paid out to whistleblowers draw attention to the SEC’s successes, they obscure the fact that its staffing level has slightly declined during a period of tremendous market growth. In one case, the SEC’s largest ever, it paid $279 million to an individual whistleblower. That single award was nearly one-third of the funding of the SEC’s entire enforcement division last year. Congress gets to pat itself on the back for spinning up a program that pays for itself (by law, the SEC awards 10 to 30 percent of their penalty collections over $1 million to qualifying whistleblowers), when it should be talking about whether or not it’s given the agency enough resources to fulfill its mission to “maintain fair, orderly, and efficient markets.”

Second, while the stated purpose of the whistleblower program is to incentivize individuals to come forward with information about potential violations of securities law, this hasn’t actually led to increases in enforcement actions. Instead of legitimate whistleblowers bringing the most credible information to the SEC, the agency now seems to be deluged by tips that are not highly actionable.

But the biggest problem is that uncovering corporate malfeasance is now a legitimate business model, resulting in powerful firms and misaligned incentives. A single law practice led by former SEC assistant director Jordan Thomas captured about 20 percent of all the SEC’s whistleblower awards through 2022, at which point Thomas left to open up a new firm focused exclusively on whistleblowers. We can admire Thomas and his team’s impact on making those guilty of white-collar crimes pay, and also question whether hundreds of millions of dollars of penalties should be funneled through the hands of an SEC insider turned for-profit business mogul.

Whistleblower tips can be used as weapons of corporate warfare. SEC whistleblower complaints are not required to come from inside a company, or even to rely on insider information. They can be filed on the basis of public data, as long as the whistleblower brings original analysis. Companies might dig up dirt on their competitors and submit tips to the SEC. Ransomware groups have used the threat of SEC whistleblower tips as a tactic to pressure the companies they’ve infiltrated into paying ransoms.

The rise of whistleblower firms could lead to them taking particular “assignments” for a fee. Can a company hire one of these firms to investigate its competitors? Can an industry lobbying group under scrutiny (perhaps in cryptocurrencies) pay firms to look at other industries instead and tie up SEC resources? When a firm finds a potential regulatory violation, do they approach the company at fault and offer to cease their research for a “kill fee”? The lack of transparency and accountability of the program means that the whistleblowing firms can get away with practices like these, which would be wholly unacceptable if perpetrated by the SEC itself.

Whistleblowing firms can also use the information they uncover to guide market investments by activist short sellers. Since 2006, the investigative reporting site Sharesleuth claims to have tanked dozens of stocks and instigated at least eight SEC cases against companies in pharma, energy, logistics, and other industries, all after its investors shorted the stocks in question. More recently, a new investigative reporting site called Hunterbrook Media and partner hedge fund Hunterbrook Capital, have churned out 18 investigative reports in their first five months of operation and disclosed short sales and other actions alongside each. In at least one report, Hunterbrook says they filed an SEC whistleblower tip.

Short sellers carry an important disciplining function in markets. But combined with whistleblower awards, the same profit-hungry incentives can emerge. Properly staffed regulatory agencies don’t have the same potential pitfalls.

AI will affect every aspect of this dynamic. AI’s ability to extract information from large document troves will help whistleblowers provide more information to the SEC faster, lowering the bar for reporting potential violations and opening a floodgate of new tips. Right now, there is no cost to the whistleblower to report minor or frivolous claims; there is only cost to the SEC. While AI automation will also help SEC staff process tips more efficiently, it could exponentially increase the number of tips the agency has to deal with, further decreasing the efficiency of the program.

AI could be a triple windfall for those law firms engaged in this business: lowering their costs, increasing their scale, and increasing the SEC’s reliance on a few seasoned, trusted firms. The SEC already, as Platt documented, relies on a few firms to prioritize their investigative agenda. Experienced firms like Thomas’s might wield AI automation to the greatest advantage. SEC staff struggling to keep pace with tips might have less capacity to look beyond the ones seemingly pre-vetted by familiar sources.

But the real effects will be on the conflicts of interest between whistleblowing firms and the SEC. The ability to automate whistleblower reporting will open new competitive strategies that could disrupt business practices and market dynamics.

An AI-assisted data analyst could dig up potential violations faster, for a greater scale of competitor firms, and consider a greater scope of potential violations than any unassisted human could. The AI doesn’t have to be that smart to be effective here. Complaints are not required to be accurate; claims based on insufficient evidence could be filed against competitors, at scale.

Even more cynically, firms might use AI to help cover up their own violations. If a company can deluge the SEC with legitimate, if minor, tips about potential wrongdoing throughout the industry, it might lower the chances that the agency will get around to investigating the company’s own liabilities. Some companies might even use the strategy of submitting minor claims about their own conduct to obscure more significant claims the SEC might otherwise focus on.

Many of these ideas are not so new. There are decades of precedent for using algorithms to detect fraudulent financial activity, with lots of current-day application of the latest large language models and other AI tools. In 2019, legal scholar Dimitrios Kafteranis, research coordinator for the European Whistleblowing Institute, proposed using AI to automate corporate whistleblowing.

And not all the impacts specific to AI are bad. The most optimistic possible outcome is that AI will allow a broader base of potential tipsters to file, providing assistive support that levels the playing field for the little guy.

But more realistically, AI will supercharge the for-profit whistleblowing industry. The risks remain as long as submitting whistleblower complaints to the SEC is a viable business model. Like tax farming, the interests of the institutional whistleblower diverge from the interests of the state, and no amount of tweaking around the edges will make it otherwise.

Ultimately, AI is not the cause of or solution to the problems created by the runaway growth of the SEC whistleblower program. But it should give policymakers pause to consider the incentive structure that such programs create, and to reconsider the balance of public and private ownership of regulatory enforcement.

This essay was written with Nathan Sanders, and originally appeared in The American Prospect.

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Gift Card Scams — The Gift That Keeps on Taking

Crooks love a good gift card scam. It’s like stealing cash right out of your pocket. 

That includes Amazon and Target gift cards, Apple and Google gift cards, Vanilla and Visa gift cards too. Scammers go after them all. 

In the U.S. and Canada, the Better Business Bureau (BBB), the Federal Trade Commission (FTC), and the Canadian Anti-Fraud Centre have issued warnings about several types of gift card scams floating around this time of year.  

The scams fall under three broad categories: 

Payment scams — Here, gift card scams take their classic form. A scammer asks for payment with a gift card rather than a payment method a victim can contest, such as a credit card. When victims realize they’ve been scammed, they have no way of getting their money back. 

Bogus balance-checking sites — These sites promise to check the balance on gift cards. However, they’re phishing sites. Entering card info into these sites gives scammers everything they need to steal the card balance for themselves. 

Gift card tampering — This involves draining gift cards of funds after they’re purchased. Organized crime rackets steal the cards from stores and then restock them on shelves — only after they’ve scanned the barcodes and pin numbers or altered them in some way. When a victim purchases and activates the card, the crooks launder the money and leave the victim with an empty card. 

Why all this focus on gift cards? They truly are as good as cash. When that money is gone, it’s gone. Yet better, it can get whisked away electronically quicker than the quickest of pickpockets.  

Fortunately, you can avoid these scams rather easily when you know what to look for.  

Gift card scams — just how bad is it out there? 

Not great. According to the U.S. Federal Trade Commission (FTC), they received nearly 50,000 reports of gift card fraud in 2022. Those losses racked up more than $250 million. Through September 2023, the BBB and FTC reported a 50% increase in cases of gift card scams over the same period in 2022. So far, that accounts for 29,000 reports and $147 million in losses — a figure that will surely climb much higher as October, November, and December roll by. 

Affected cards include the usual list of well-known and reputable brands, such as Walmart, Target, Apple, Google, Amazon, Best Buy, and the Steam gaming platform. Back in 2021, Target gift cards racked up the biggest losses, an average of $2,500 per victim, according to the FTC. 

Canada has seen a jump in reports as well. According to the BBB and the Canadian Anti-Fraud Centre, January through August 2023 saw roughly 1,200 reports with $3.5 million in losses for an average loss of roughly $2,900. 

What are scammers asking people to pay for with gift cards? 

If you can imagine a transaction of any kind, a scammer will likely try to get you to pay for it with gift cards. 

Some of the more striking examples include scammers who pose as dog breeders who take gift cards as advance payment. They also lurk in online marketplaces and local buy-sell groups, preying on victims looking to buy anything from furniture to golf carts.  

And as we’ve reported in the past, scammers often pose as government officials. In these cases, they level heavy threats and demand payment for fines and back taxes, all with gift cards. That’s a sure sign of a scam. 

Some scammers go to greater lengths by setting up phony online stores that only accept payment with gift cards. One high-profile example — the phony ticket sites for major sporting events like the Super Bowl and World Cup. Many of those sites offered gift cards as a payment option. In other instances, scammers set up similar bogus storefronts that sell lower-priced items like clothing and bags. 

Lastly, we come around to those gift card balance-checking sites, which are really phishing sites. As reported by Tech Times, a user on Reddit uncovered a paid Google ad that directed people to one such site. 

Source, Reddit 

The ad is on the left. The phishing site is on the right. Note how Target is spelled as “Targets” in the ad, and the address on the phishing site is entirely different than Target.com. Yet that doesn’t stop the scammer from asking for all the info they need to steal funds from the card a victim enters. 

How to avoid gift card scams. 

Bottom line, if anyone, anywhere, asks you to pay for goods, services, or debts of any kind with a gift card, it’s a scam. Additionally, here’s further advice from us and the BBB: 

1. Remember that gift cards are for gifts. Never for payments. 

This reinforces the advice above. The crooks who run gift card scams pose as utility companies, the government, lottery officials, tech support from big-name companies, even family members — just about anyone. Yet what all these scams have in common is urgency. Scammers use high-pressure tactics to trick victims into paying with gift cards.  And paying quickly. 

2. Look for signs of tampering with your physical gift card. 

Earlier we mentioned gift card tampering, where scammers either copy or alter the card info and then steal funds when the card is purchased. Signs of tampering include a bar code that’s affixed to the card with a sticker, a PIN that’s been exposed, or packaging that looks like it’s been altered in any way. If possible, purchase gift cards that are behind a counter where they are monitored. This can decrease the risk of purchasing a gift card that’s been tampered with. Also, save your receipt in the event of an issue. 

3. Purchase online gift cards from reputable retailers. 

One way you can avoid the tampering scenario above is to pick up online gift cards. Several reputable retailers and brands offer them. 

4. Check your balance at the retailer or with their official app. 

Both can tell you what your card balance is, securely and accurately. Avoid any site online that offers to check your balance for you. 

 5. Treat your gift cards like cash. 

That’s what they are. If the brand or retailer issuing the card allows you to register the card, do so. And if it further allows you to change the PIN, do that as well. This way, you can report card theft with an eye to getting your money back — while changing the PIN can help keep scammers from using the card altogether. 

What can I do if I fall for a gift card scam? 

If you fall victim to a scam, report it. Organized crime operations big and small often run them, and reports like yours can help shut them down.  

More ways to beat the scammers — with online protection. 

Online protection like ours offers several features that can help steer you clear of scams. It can detect suspicious links, warn you of scam sites, and remove your personal info from sketchy data broker sites. 

Text Scam Detector: McAfee’s patented and powerful AI technology helps you stay safer amid the rise in phishing scams. Including phishing scams generated by AI. It detects suspicious URLs in texts before they’re opened or clicked on. No more guessing if that text you just got is real or fake. 

Web protection: And if you accidentally click on a suspicious link in a text, email, social media, or browser search, our web protection blocks the scam site from loading.  

McAfee Personal Data Cleanup: Scammers must have gotten your contact info from somewhere, right? Often, that’s an online data brokera company that keeps thousands of personal records for millions of people. And they’ll sell those records to anyone. Including scammers. A product like our Personal Data Cleanup can help you remove your info from some of the riskiest sites out there. 

More sound advice. Stick with known, legitimate retailers online. 

It’s gift-giving season, so it comes as no surprise that we’re seeing a spike in gift card scams. What makes this year’s jump so striking is the trending increase over last year’s numbers. 

Remembering that gift cards are for gifts and never for payments can help you from falling for one of these scams. That and inspecting gift cards closely for tampering or opting for an online gift card can help as well. And as always, strong online protection like ours helps keep you safer from scammers as you shop, go through your messages, or simply surf around. 

The post Gift Card Scams — The Gift That Keeps on Taking appeared first on McAfee Blog.

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