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SEC charges two firms with ‘AI washing’

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Emerging Technology, Inside the Beltway, Investor Protections
Friday, April 5, 2024

Artificial intelligence (AI) has opened up new avenues for professionals to advance their business operations or run afoul of federal laws. Two recent orders by the Securities and Exchange Commission (SEC) describe an example of the latter – “AI washing.”

Accused of making false and misleading statements about their use of AI, two firms recently paid $400,000 in civil money penalties to the SEC. Delphia (USA) Inc. and Global Predictions Inc., both investment advisers, claimed to have AI and machine learning capabilities they did not actually possess.

“We find that Delphia and Global Predictions marketed to their clients and prospective clients that they were using AI in certain ways when, in fact, they were not,” SEC Chair Gary Gensler said in a press release. “We’ve seen time and again that when new technologies come along, they can create buzz from investors as well as false claims by those purporting to use those new technologies. Investment advisers should not mislead the public by saying they are using an AI model when they are not. Such AI washing hurts investors.”

From 2019 to 2023, Delphia misrepresented its ability to incorporate AI/ML (machine learning) technology into its investment process. The SEC’s consent order cited one example in which the Toronto-based firm said it “put[s] collective data to work to make our artificial intelligence smarter so it can predict which companies and trends are about to make it big and invest in them before everyone else.”

The firm also faced charges of violating the SEC’s Marketing Rule, which prohibits a registered investment adviser from distributing advertisements that include any untrue statement of material fact, among other stipulations.

“As more and more investors consider using AI tools in making their investment decisions or deciding to invest in companies claiming to harness its transformational power, we are committed to protecting them against those engaged in ‘AI washing,’” SEC Enforcement Director Gurbir Grewal said in the release. “As today’s enforcement actions make clear to the investment industry – if you claim to use AI in your investment processes, you need to ensure that your representations are not false or misleading. And public issuers making claims about their AI adoption must also remain vigilant about similar misstatements that may be material to individuals’ investing decisions.”

In the SEC’s order against Global Predictions, the agency found the San Francisco-based company had made false and misleading claims in 2023 on its website and via social media about its purported use of AI. The SEC accused the firm of falsely claiming to be the “first regulated AI financial advisor” and claimed its platform provided “[e]xpert AI-driven forecasts.” Global Predictions also violated the SEC’s Marketing Rule by falsely claiming that it offered tax-loss harvesting services and included an impermissible liability hedge clause in its advisory contract, as well as other securities law violations.

Without admitting or denying the SEC’s findings, Delphia and Global Predictions consented to the entry of orders finding that they violated the SEC’s Advisers Act. In doing so, they agreed to be censured. Delphia agreed to pay a civil penalty of $225,000, and Global Predictions agreed to pay a civil penalty of $175,000.

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