CFTC Protection of Information and Data Act of 2026
- Sponsor
- Rep. Messmer, Mark B. [R-IN-8]
- Committees
- Agriculture Committee (primary)
- Last action
- Jun 15, 2026
Bottom line
The bill aims to enhance the CFTC's ability to share and receive sensitive information with other regulatory bodies while protecting legal privileges, thereby streamlining enforcement and cooperation efforts.
What it actually does
This bill amends Section 8 of the Commodity Exchange Act to revise the disclosure authorities of the Commodity Futures Trading Commission (CFTC) and establish new provisions for the retention of privilege when sharing information. It clarifies when the CFTC can share information with domestic, state, and foreign governmental entities, and explicitly states that sharing privileged information with or by the CFTC does not waive that privilege, with certain exceptions for investigations against the sharing entity.
Proponents argue
Proponents argue that this bill is crucial for modernizing the CFTC's information-sharing capabilities, enabling more effective oversight and enforcement in complex global commodity markets. They contend that clarifying privilege retention will encourage greater cooperation among regulatory bodies, both domestically and internationally, without fear of inadvertent waiver, ultimately strengthening market integrity and protecting investors.
Opponents contend
Opponents might raise concerns that expanding the CFTC's disclosure authorities, even with conditions, could potentially increase the risk of sensitive market data being exposed or misused, particularly when shared with foreign entities. They may also argue that the broad definition of 'privilege' and the non-waiver provisions could inadvertently shield certain information from necessary scrutiny, especially in cases not involving direct investigations against the sharing entity.
The bill is relatively short and its core provisions are clearly laid out, making it accessible for an informed reader to understand its implications within a reasonable timeframe.
Section 2(1) of H.R. 9128, amending Section 8(e) of the Commodity Exchange Act.
Clarified Disclosure Authorities for the CFTC
This provision redefines the circumstances under which the Commodity Futures Trading Commission (CFTC) can disclose information it collects. It explicitly outlines rules for sharing data with Congress, other U.S. federal agencies (including Federal Reserve Banks), state and local government entities, and foreign regulatory bodies. For each category, it specifies conditions under which the receiving entity can further disclose the information, generally limiting it to legal or adjudicatory proceedings.
Supporters argue
Supporters argue that these clarifications are essential for the CFTC to effectively collaborate with other regulatory and enforcement agencies in a globally interconnected financial system. They contend that by clearly defining disclosure parameters, the bill reduces ambiguity, fosters trust, and ensures that critical market information can be shared responsibly to prevent fraud and maintain market stability.
Critics contend
Some might argue that while clarity is beneficial, the expansion of explicit disclosure authorities, particularly to foreign entities, could increase the risk of data breaches or misuse of sensitive market participant information, even with stated conditions. They may suggest that the conditions might be difficult to enforce across diverse international legal frameworks.
Tradeoffs
The provision balances the need for robust inter-agency information sharing to combat financial crime and ensure market integrity against concerns about data privacy and the potential for misuse of sensitive proprietary trading information by various governmental bodies.
Section 2(3) of H.R. 9128, inserting new Section 8(h) into the Commodity Exchange Act.
Non-Waiver of Privileged Information
This provision establishes that when the CFTC shares its own privileged information with other specified governmental entities, or when these entities share their privileged information with the CFTC, such sharing does not constitute a waiver of that privilege. This means the information remains protected by attorney-client privilege, work-product privilege, or other governmental privileges. However, there is an important exception: the non-waiver protection does not apply if the CFTC obtains information from an entity during an investigation or action against that specific entity.
This subparagraph specifies that the general non-waiver protection for entities sharing privileged information with the CFTC does not apply if the information was obtained by the Commission in an investigation relating to or in any action against that specific entity.
Section 2(3), inserting new Section 8(h)(4)(B) into the Commodity Exchange Act.
Why it matters:This is standard legislative practice for defining the precise scope and limitations of a new legal protection. It's not necessarily evasive but requires careful reading.
Case for: Supporters would argue this exception is crucial for maintaining accountability. It prevents entities from using the non-waiver provision as a shield to withhold privileged information from the CFTC when they are the subject of an investigation, ensuring the CFTC retains necessary enforcement tools.
Case against: No direct 'case against' this specific exception, as it generally strengthens the CFTC's enforcement capabilities. However, some entities might prefer a broader non-waiver protection without such an investigative carve-out.
Estimated impact: Significant for enforcement actions. It ensures that the CFTC's ability to investigate and take action against regulated entities is not hampered by new privilege protections intended for inter-agency cooperation.
This clause states that the CFTC cannot be compelled to disclose privileged information obtained from a foreign futures authority if that authority has in good faith represented the information as privileged, except as provided for in subsection (a)(1).
Section 2(3), inserting new Section 8(h)(3) into the Commodity Exchange Act.
Why it matters:This is standard legislative practice for referencing existing law. The cross-reference to (a)(1) is a technical detail that defines the limits of this protection.
Case for: Proponents would argue this is essential for international cooperation. Foreign regulators are more likely to share sensitive information with the CFTC if they are assured it will remain privileged and not be subject to compelled disclosure, thereby enhancing global market oversight.
Case against: Critics might argue that the 'good faith' representation by a foreign authority could be subjective and that the exception (a)(1) might not be sufficiently robust to ensure transparency or accountability in all cases, potentially shielding information from public scrutiny.
Estimated impact: Facilitates international regulatory cooperation, potentially increasing the flow of intelligence to the CFTC regarding global market activities.