Treasury

If you are interested in understanding serious emerging problems with algorithmic markets, please don’t miss my Daily Caller op-ed “Bitcoin’s Quixotic Search for Legality” – here.

• It is Part 10 of my Algorithmic Markets research series.

Algorithmic Markets Research Series

Part 1: Who's Looking Out for Investors? [6-14-01]

"We set the highest standards of privacy and security for our users," Google said in response to the FTC fining Google $22.5 million: for hacking a competitor's system in order to short-circuit a competitor's privacy protection of its users; and for violating the FTC-Google-Buzz enforcement Order without any admission of liability whatsoever. In addition, Google characterized the problem as a minor unintentional technical mistake (like it originally characterized its Street View WiSpy privacy violations), and then patted itself on the back that no personal information was collected by its actions.

Google's public reaction mocks the FTC's mission statement -- "to prevent business practices that are anti-competitive, deceptive, or unfair to consumers" -- which ironically is featured in the FTC's announcement of the Google privacy fine. Google acceded to a small misrepresentation fine for Google, as simply the cost of doing business the Google way.

FreePress' latest net neutrality folly and political agitation is pushing the SEC to make shareholders from AT&T, Verizon and Sprint vote on inappropriate, ill-advised, and unwarranted proposed shareholder resolutions in favor of wireless net neutrality in the weeks ahead.

Let me count the ways this is a waste of time and abuse of process.

First, it inappropriately and destructively attempts to politicize non-political entities, by trying to force a public political position from non-political corporate entities, whose contractual and fiduciary responsibility to shareholders is to economically/financially grow the value and profitability of the corporation.

Second, the appropriate place to have political votes is in legitimate political processes, elections or representative votes or decisions by elected officials at the appropriate local, state, and Federal level, which enjoy the constitutional, political, and relevant authority and legitimacy to decide political issues in a meaningful, substantive and productive way.

Third, the operative authority here for shareholders, the companies' shareholder agreements, corporate charter, and bylaws, are legally grounded on a contractual agreement between the company and shareholder to protect and grow the shareholders investment in the company, not to promote extra-political positions that actually could endanger the underlying purpose of the shareholders agreements.

It will be telling to see if the FCC's proposed rule making Thursday on retransmission consent addresses the glaring issue of why prices ONLY go up in this obviously dysfunctional regulated, and out-of-date retrans marketplace, because the FCC's rules have never been updated to reflect the competitive entry, and great success of, strong DBS and telco competitors into the pay TV market.

• Embarrassingly, the FCC's current retrans rules are fossilized in a 1992 cable monopoly era that is long extinct.
• The pay TV market is obviously competitive, and the FCC's current retrans rules are obviously based on an out-of-date cable monopoly market assumption.
• It also will be telling to learn if the FCC is open to updating their retrans rules for the 21st century competitive Internet era.

In most every other FCC proceeding involving competition matters over the last fifteen years, the FCC has examined where industry pricing trends have gone directionally over time as a proxy for how competitive the market is and/or to learn if market power is at work.

It will be telling to learn if the FCC cares about competition policy and the state of competition in the pay TV market that the FCC has the direct statutory authority to oversee... given how focused the FCC has been over the last year to impose preemptive restrictions on broadband providers to address speculative harms to competition in the Open Internet Order based on questionable ancillary authority.

Google announced it is working on an economy-wide Google Price Index, but has not decided whether to make it public, per Google Chief Economist, Hal Varian, who spoke at the National Association of Business Economists conference this week.

• This development has under-appreciated implications for insider trading and also spotlights how Google's online dominance of market-relevant information suggests market failure and a new potential systemic vulnerability to the integrity of global capital markets.

I.  Insider Trading

In March, Google CEO Eric Schmidt said: "One day we had a conversation where we figured out we could just try and predict the stock market... and then we decided it was illegal. So we stopped doing that."

Now any hedge fund (or market regulator not born yesterday) understands that if Google is actively working on a Google Price Index, Google has not stopped trying to use its uniquely comprehensive and timely, repository of sensitive market information to predict information highly useful to predicting the stock market.

The SEC/CFTC report on the May 6th "Flash Crash" helps confirm that automated index trading technology was a contributing cause of the 2008 Financial Crisis and why recent financial reforms are not enough to address the ongoing destructive systemic vulnerability that automated index trading technology increasingly poses for financial markets going forward.

Google's unprecedented mass-accumulation of material non-public information may force a re-thinking and broader definition of the concept of insider information/trading and related securities laws/regulations, in order to continue to ensure the integrity of public markets.

• Public statements by Google's CEO Eric Schmidt last week unwittingly unveiled a new and potentially very serious material weakness in the oversight and integrity of public markets, that should trouble those responsible for policing insider trading and other public securities laws at the SEC, CFTC, FERC, Treasury and the DOJ.
• From Jon Fortt's outstanding not-to-be-missed post in Fortune: "Top 5 moments from Eric Schmidt's talk in Abu Dhabi:"
  • Google CEO Eric Schmidt: "One day we had a conversation where we figured we could just try and predict the stock market..." "and then we decided it was illegal. So we stopped doing that."

Public market regulators responsible for protecting the integrity of public markets are likely to be concerned by this public admission by a publicly-traded Fortune 200 CEO, especially when the statements are put in a broader perspective by connecting the relevant dots.

How could American taxpayers get stuck with a multi-trillion dollar tab that they weren’t even aware that they were running up? How could that huge tab still be allowed to run up unchecked today? For the Financial Crisis Inquiry Commission, the sad answer is one of the biggest root causes of last fall’s devastating financial crisis and one of the biggest continuing systemic risks to the financial system and the economic recovery.  

A decade ago, in what may prove to be the most expensive bipartisan legislative mistake in U.S. history, a bipartisan policy became law that effectively ensured that no Federal regulator had oversight or enforcement jurisdiction over derivative financial instruments. The Commodity Futures Modernization Act of 2000 (CFMA) created “legal certainty for excluded derivative transactions.” That law allowed a shadow derivative overlay system to be built literally on top of the public financial system, with none of the inherent accountability of the underlying financial system.  In other words, a deliberate bipartisan U.S. government policy change a decade ago unwittingly created an unaccountable “black hole” market that sucked enormous value out of public markets, (Bear Stearns, Lehman, AIG, Fannie, Freddie, securitized sub-prime mortgages, etc.) while laundering the risk to the U.S. taxpayer.

When Investment News asked John Bogle, Vanguard's founder and the father of indexing, about my "Indexing into the Ditch" thesis (that indexing is one of the root causes of the financial crisis) he said: it “is nuts! Last time I looked, index funds accounted for about 0.4% of all stock trading ... Just perhaps the other 99.6% might bear a teeny-weeny bit of the responsibility.”

Let me first respond to Mr. Bogle's points in order.

The thesis "is nuts! "I must admit I smiled at the ad hominum implication that my thesis was "nuts" and not worth listening to; I remembered that Bernie Ebbers called me the "idiot Washington analyst" because my research was the first to charge that WorldCom's business simply did not add up.