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House Passes Bill Requiring SEC to Issue Subpoena Before Seeking Algorithmic Codes

The U.S. House of Representatives passed several bills from the Financial Services Committee recently, one of which amends the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, and the Investment Advisers Act of 1940 to require the SEC to first issue a subpoena before it compels a person to produce or furnish to the SEC algorithmic trading source code or similar intellectual property. This bill, H.R. 3948, which was included in the larger package of legislation, was introduced by Rep. Sean Duffy (R-WI) with Reps. David Scott (D-GA) and Randy Hultgren (R-IL) as original cosponsors on October 4, 2017 and was approved by the Financial Services Committee by a vote of 46-14. Committee Chairman Jeb Hensarling (R-TX) supported the legislation during floor debate, saying: “Source code is among a firm’s most sensitive information, and this bipartisan provision balances privacy and due process concerns while preserving the SEC’s ability to obtain such information when necessary.”  Committee Ranking Member Maxine Waters (D-CA) criticized the bill, saying it “would severely hamper the ability of the SEC…to investigate market disruptions” and make “it harder for the capital markets cop to detect and stop bad actors.”  The package of bills passed the House on a bipartisan vote of 271-145, with 43 Democrats joining all but one Republican in voting yes.  This package of bills continues a recent pattern of the House passing targeted legislation in anticipation that the Senate will likely pass a financial services regulatory reform bill in the coming months and a House-Senate conference committee will convene to finalize a package to send to the President for signature.