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46 Cardozo L. Rev. 927 (2024-2025)
Locating Consumer Financial Regulation

handle is hein.journals/cdozo46 and id is 920 raw text is: LOCATING CONSUMER FINANCIAL REGULATION Nikita Aggarwalt Recent advances in data-driven technology in consumer financial markets, commonly referred to as fintech, have resurfaced the question of whether and to what extent data, particularly consumers' personal data, should be a locus for regulatory intervention in these markets. While innovation in fintech and the accompanying increase in the processing of personal data offer to improve the functioning of consumer financial markets, like all advances in technology, they also come with costs and risks. In 2024, in a move that favored the regulation ofpersonal financial data per se and many of the traditional features of personal data protection regulation, the Consumer Financial Protection Bureau (CFPB or the Bureau) issued a new Personal Financial Data Rights Rule. The Rule seeks to mitigate the costs and risks offintech and capture its benefits, specificallydue to Open Banking, a fast-growing digital network that enables consumers to transfer their personal financial data between financial institutions. As fintech innovation advances and the Bureau looks to personal data protection regulation as a model for regulating consumer fintech markets, this Article sounds a note of caution. As theory predicts and empirical evidence corroborates, despite its intuitive appeal, there are clear limits to the effectiveness of personal data protection regulation. The problem is not only the limitations of the traditional, mostly procedural and contractarian approach of personal data protection regulation, but also, more conceptually, the limitations of personal data per se as a locus for balancing the costs and benefits, and opportunities and risks, of t Associate Professor of Law, University of Miami. For very helpful comments, I thank Kathleen Engel, Woody Hartzog, Ted Janger, Craig Cowie, Irit Mevorach, Chris Odinet, and participants in workshops at University of Miami School of Law, UCLA School of Law, UCLA Institute for Technology, Law and Policy, University of North Carolina School of Law, Tulane Law School, University of Nebraska College of Law, the Law and Technology Workshop, the 2024 Consumer Law Scholars' Conference at University of California, Berkeley, the 2024 National Business Law Scholars' Conference at University of California, Davis, and the 2024 Young Bankruptcy Scholars' Work in Progress Workshop at Brooklyn Law School. Nathan Siegel and Monica Diaz provided excellent research assistance. 927

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