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Document Type

Article

Publication Date

Winter 2018

Publication Citation

93 Indiana Law Journal 1211 (2018)

Abstract

The Article explains why addressing Too-Big-To-Fail 2.0 has not yet become a political and societal priority. First, digital service providers are technology companies, which, many believe, are shaped by market forces such that they fail and succeed in equal measure without producing negative ripple effects on the economy or society. Second, technology giants are not as carefully regulated as banks becauseunlike banks, they do not take insured deposits backed by the government. Third, even heavily regulated financial institutions have not been required until recently to focus on cybersecurity. Finally, some believe that there is no point in worrying about Too-Big-To-Fail 2.0 as it is difficult to prepare for theoretical unknowns. Despite these arguments, however, the Article contends that given the factors outlined in the Critical Service Provider list of criteria, such as size, business involvement in multiple industry sectors, and impact on technology, the economy, and cyber-social systems, Too-Big-To-Fail 2.0 is a valid concern.

Recognizing this problem, the Article then calls for the design of a new systematic approach, resembling to a limited extent that of the Dodd-Frank Act, to understand which entities qualify as Critical Service Providers and why they should have enhanced risk management procedures. The Article proposes certain criteria to ground such an approach. Finally, the Article suggests that the companies designated as Critical Service Providers should be subject to some type of supervisory scrutiny, which would be the product of a collaborative private-public initiative and result in better risk management and internalizing.

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