The majority vote was led by Chairman Timothy Massad and Commissioner Sharon Bowen, with Commissioner Christopher Giancarlo dissenting.  Massad reasoned that the current rules favor automatic trading firms over traditional trading companies, as the former are able to simply “hide behind their machines” to avoid agency surveillance.  Dissenting Commissioner Giancarlo criticized the majority for seeking to go above and beyond the subpoena process, thereby eliminating any due process protection that the companies may have under the Constitution.

The new rule would also require algorithmic trading firms to register with the CFTC if they trade on average 20,000 futures contracts a day over a six-month period.  This would broaden the agency’s coverage and potentially its ability to obtain highly coveted secrets that form the foundation for some firms.  And there is reason for concern.  Some may recall in 2001 when Senator Bernie Sanders released confidential CFTC data on oil trading positions, and it is not a far reach to think that a firm’s proprietary algorithms could similarly be used for political purposes.

While this proposed rule may only impact a small industry at the moment, that other agencies may now seek the same power is worrisome.   With Obama on his way out the door and Trump on the way in, it is yet to be seen whether this type of power grab will continue.  We will continue to monitor and report the development and public comment on this proposed rule.\

— Posted in Trade Secrets