SEC’s AI Proposal Would Negatively Affect Retirement Education Features, Commenters Say

The comment period for the Securities and Exchange Commission’s proposal on artificial intelligence and conflicts of interest closed Tuesday. The proposal, which would require advisers to eliminate or neutralize all conflicts related to the use of predictive or optimization technology, received near-unanimous disapproval and many calls for a total withdrawal.

The proposal, first unveiled in July, would apply to any “analytical, technological, or computational functions, algorithms, models, correlation matrices, or similar methods or processes that optimize for, predict, guide, forecast, or direct investment-related behaviors or outcomes of an investor.”

The breadth of this definition was the most common criticism in the comment file and has also been targeted in other public settings since the rule was first proposed.

Retirement sector professionals noted that this definition of predictive or optimization technology would apply to too wide a range of retirement educational and readiness tools. The ERISA Industry Commission noted in its letter to the SEC that the proposal would apply to ordinary retirement readiness calculators and chat bots. ERIC called on the SEC to fully withdraw the proposal.

According to the letter, educational tools “are highly dependent on technology to efficiently and effectively deliver services and information, including data that can be personalized to employees. This technology is ever-evolving and presents exciting opportunities to generate positive outcomes for workers. Regulations that create uncertainty, increase costs, and stifle innovation do not benefit workers and should be resisted.”

The American Benefits Council elaborated on this concern in its letter and likewise asked the SEC to withdraw the proposal. The ABC noted that the proposal would cover technologies that calculate for retirement savers “how much in total they need to have saved by retirement age or … how much money they can afford to spend annually during retirement,” since these technologies are predictive in character. The ABC added that the proposal would be “very counterproductive to our goal of achieving retirement security.”

Empower, unlike other commenters, suggested that the SEC either withdraw the rule or make specific changes. Instead of a full withdrawal, but in line with other commenters, Empower recommended making a categorical exemption for educational materials such as readiness calculators and allocation brochures.

Empower’s letter stated that many advisers offer educational tools for retirement plans, but if the required technology is swept up by a final rule and advisers are required to eliminate all related conflicts instead of mitigating and disclosing them, advisers may stop providing the tools at all. The letter explained that many advisers would be unlikely to take the risk that educational materials intended to encourage greater contributions to retirement accounts could be construed as a conflict.

Both the American Securities Association and the Investment Adviser Association requested that the SEC withdraw the proposal and instead stick to the principles of adviser fiduciary duties, which outlines the duties of care and loyalty advisers have to their clients. Already existing fiduciary duties would apply to the covered technologies anyway, but it only requires mitigation and disclosure of conflicts, rather than total elimination, their letters argued.

The IAA explained that “even where the covered technology would provide financial education, coaching, guidance, or advice that are in the best interest of clients, notwithstanding the presence of a conflict, the adviser would be per se prohibited from proceeding to use the technology without first eliminating or neutralizing the conflict altogether.”

The ASA letter was more critical and described the proposal as a “concept release in which a regulator surveys the industry to learn more about a topic and to better inform itself as to any unintended consequences.”

The SEC has not set a timetable for finalizing the rule.