فن آوری تنظیم مقررات، موضوعات خطرناک و مرزهای مالی: حاکمیت 'تقلب' در بازارهای مالی

Among the myriad changes to have impacted the regulation of financial markets in recent years, one of the most significant yet least recognized is the growing role of technology in the regulatory process where it is used to detect emerging problems in the marketplace and guide the enforcement process. Current applications range from surveillance technologies, to datamining and risk profiling tools, to data visualization and graphing programs. Using the term ‘regulatory technologies’, this paper examines in detail two such technologies and assesses not only their benefits and limitations, but also their more subtle role in shaping the very criteria through which financial transactions and market actors are represented, framed, and assessed for their regulatory merit. To the extent that this process hinges on the ability to make distinctions on the grounds of risk, typicality, and appropriateness, these technologies play a critical role in shaping the boundaries of enforcement and thus the scope and depth of the regulatory vision. This is revealed to have significant implications for our understanding of the place of technology in regulation and for the types of questions that must be addressed in discussions of financial governance.

In their bid to flush out financial misconduct and protect the integrity of the markets, regulatory agencies of various stripes and colours have increasingly turned to technological solutions. Spurred by advancements in computing power, speed, and storage capacity, as well as new analytical capabilities such as searchable databases, computational intelligence, and data visualization tools, regulators are now able to probe much further into the depths of the market. The specific applications of these technologies are extensive and include monitoring the Internet for changes in market sentiment, surveying the flow of buy and sell orders for signs of insider or manipulative trading, and probing the social network of market participants for evidence of connections bearing on the legality of trading activity. Indeed, these developments reflect very real changes in the markets themselves which have morphed from open outcry pits to primarily electronic transactions (Zaloom, 2003 and Zaloom, 2006) executed at break-neck speeds often in the absence of human intermediation.1 The result is a greater visibility of market transactions and, one would imagine, increased opportunities for regulatory oversight. Despite these developments, very little research exists on the role of technology not only in securities and financial regulation, but also in regulation more generally. To the extent that technology is addressed, it tends to be reduced to a more narrowly conceived informational capacity and thus one of the many arrows in the regulatory quiver, rather than an aspect of regulation that is deserving of study in its own right. Informed by the results of a multi-year study of securities regulation in Canada, this paper seeks to remedy this oversight through an extended analysis of ‘regulatory technologies’ and their place within, and their influence on, the practice of regulation. Eschewing the view of technology as a mere vehicle for recording and organizing data of regulatory interest, with technology conceived here simply as an extension of its human operators, attention is instead devoted to the regulatory possibilities contained in the technologies themselves; that is, to their role as active agents proactively scanning available market data for signs of trouble and then feeding the results to their human counterparts. In recognizing this more active role of technology in the regulatory process, this paper draws from two key literatures – ‘critical accounting’2 and the ‘social studies of finance’ – which acknowledge the social and institutional contexts of accounting and finance as well as the role of calculative technologies and devices not only in representing market activities or financial transactions, but also in shaping and indeed constituting these very practices. Working within these analytical veins, the focus of this paper extends well beyond the promises or failures of regulatory technologies to include their underlying logics and assumptions, their embeddedness within specific institutional contexts and legal processes, and the types of market ‘misconduct’ that they produce. Ultimately then, the question is how technology shapes the field, scope, and logics of regulatory engagement producing particular forms of disorder to the exclusion of others all the while constituting ‘finance’ and ‘the market’ itself in the process. This analysis unfolds through three core sections. The first section offers a more fulsome account of exactly what is meant by the term ‘regulatory technologies,’ its relevance to the contemporary context of financial markets and securities regulation, and the various influences which have driven the ever greater importation of techno-logics into the regulatory process. It then examines in detail two specific regulatory technologies that have assumed a prominent role in the daily practice of securities enforcement3: (1) real-time market surveillance and (2) datamining and risk profiling. Having identified their assumptions, tendencies, and practical limitations, the second section turns to the unintended consequences and less obvious side-effects of these technologies including their role in signaling rather than necessarily enhancing agency competencies and, even more critically, reproducing more narrowly cast and at the same time heavily moralized conceptions of trouble, risk, and disorder. The paper then concludes with a discussion of the implications of the analysis for future research including the need to extend the conversation around regulatory technologies to other areas of financial regulation such as auditing whose technological attributes are similarly overlooked and underappreciated.

Confronted by continuously evolving markets and the ever greater speed and scale of transactions, regulators are engaged in a perennial struggle to keep up, or rather, to not fall too far behind. As part of this quest, regulatory technologies offer a ray of hope expanding the analytical capabilities of regulators and their ability to parlay available market transparencies into actionable intelligence. And yet, it would seem that the contributions of these technologies, as a matter of practice, are much more modest limited as they are by their own internal logics and the nature of their organizational and legal embeddedness. The result of these various influences is the narrowing of the field of engagement and the production of a limited view of the markets. This is a view organized according to a logic of normalized distinguishability and coded in terms of the boundaries between transactions and actors thus divided and differentiated. It is in this respect that regulatory technologies may be seen to contribute to what Preda (2009) refers to as the framing of finance. Informed by the metaphor of looking through an outside window and witnessing events unfolding on the inside without actually being able to enter, these technologies provide a degree of access to the markets while at the same time limiting the extent and meaningfulness of this engagement. They thus represent observational devices, a kind of regulatory window into the markets that is significant both as a sign of regulatability on which the legitimacy of regulators and the markets may be staked, and an indication of the boundaries that invariably separate finance from the ‘outside’ world, the paradox of a financial visibility that is increasingly clear yet exceedingly remote. Taking this one step further, these technologies do more than simply create a rendering of the markets suitable for regulatory consumption; they are also constitutive of the markets themselves. Market players are no doubt aware of the parameters and limits of these regulatory technologies and adjust their practices accordingly, thus altering market activities and potentially exacerbating existing financial risks (Black, 2006). And yet, these strategies, choices, and dynamics rarely come to light, subsumed as they are under the smooth surface of algorithms and technological outputs and framed in terms of the sound principles of technocratic inquiry and disinterested deliberation, a further manifestation of the de-politicization of finance (de Goede, 2005). There are a number of implications that follow from this analysis. First, more studies are needed on the role of technology in the regulatory process. Such research must take regulatory technologies seriously as a force in their own right, opening up these ‘black boxes’ and recognizing that regulation is constituted not only in terms of organizational and legal forms, but also a wide range of technologies, devices, and material practices that extend well beyond these institutional or organizational casings. One area in desperate need of exactly this type of research is the role of technology in the practice of accounting and auditing. As noted by Robson et al. (2007), the accounting literature continues to treat the audit and its associated technologies as a ‘black box’ (p. 412). An important part of the effort to open up this black box and explore the practices and details of audit practices would involve coming to terms with, for example, the role of information technologies in detecting problems or anomalies in financial statements. The growing use of computer-based forensic auditing programs comes to mind as an area especially ripe for future research. Examining these programs could help to address some of the aforementioned challenges with detecting accounting-based offenses, an objective that is especially important given the raft of recent abuses and the growing responsibility cast on accountants for preventing future troubles, “Given the difficulty that auditors face in detecting financial statement fraud, coupled with their increasing responsibility to detect it, there is a definite need to develop audit procedures or strategies more specifically focused on fraud detection” (Knapp & Knapp, 2001, p. 26). Moreover, with accountants facing increased scrutiny as a result of exactly these kinds of failures, it is conceivable that technology could also come to play a greater role in the regulation of accountants themselves imposing a greater visibility and transparency on their activities and potentially offering an alternative to professionalization projects (Cooper and Robson, 2006, Halliday and Carruthers, 1996 and Robson et al., 1994) as the grounds for the legitimacy of the profession. Second, as part of this focus, future research would benefit from a greater dialogue between the critical accounting and social studies of finance literatures which continue to exist in what Vollmer, Mennicken, and Preda (2009) characterize as a “state of comparative neglect” (p. 620). This would certainly include a recognition of their common interest in dilemmas of calculation and auditability as well as the constitutive role of devices, programs, and assessment techniques in performing finance, the markets, and other areas of economic activity. However, beyond developing this common ground, there are also ample opportunities for cross-fertilization. Contributions to the social studies of finance may be helpful in highlighting the technological, rather than simply institutional or professional, roots of accounting and accounting regulation. Conversely, work in the critical accounting tradition might help to draw attention to the symbolic and communicative aspects of accounting technologies, and to the relevance and impact of institutional processes, practices, and politics including forms of competition and rivalry (Cooper and Robson, 2006 and Robson et al., 2007). Indeed, a common criticism of the larger science and technology studies literature, and the work of Latour in particular, is its deeply empiricist tendencies and its failure to acknowledge the presence of conflict, struggle, and power within socio-technical networks (Levi & Valverde, 2008), forms of politicking which clearly have an impact on the regulatory technologies discussed in this paper. Ultimately then, there are various opportunities for mutual dialogue and enrichment between the critical accounting and social studies of finance literatures, and future research on accounting and auditing technologies would do well to pursue these discussions. Finally, the study of regulatory technologies points to a larger dilemma that continues to confound regulation more generally and which deserves to be explored in future research. This involves what may be described as a failure to ‘problematize the norm.’ As revealed through this paper, one of the consequences of relying on algorithmically inspired technologies, and thus statistical thinking, is a tendency to focus only on those activities that are construed as atypical or abnormal to the exclusion of most others. This inclination, bolstered by the logics, format constraints, and modes of problematization that inform the larger enforcement process, is equally evident in securities regulation in general and increasingly so as, for example, creative accounting and dubious financial products are bound to be condoned so long as they remain standard industry practices. Set alongside this valorization of the norm, and the continuing emphasis on egregiousness as a marker of regulatory interest and energy, is the progressive narrowing of what are considered to be legally sanctionable practices. This narrowing is perhaps most evident in attributions of ‘fraud’ which tend to be reserved for only the most extreme, and extremely nefarious, cases thus limiting the ability to mobilize regulatory and especially criminal law in response to financial misconduct and fueling what Snider (2000) has described as the de-criminalization of corporate crime. The need to problematize and politicize ‘the norm’ is thus an important consideration for future research on regulatory technologies and an essential lens for evaluating their relative merits in this and other regulatory contexts.