This article offers a new perspective on battling credit card fraud. It departs from a focus on post factum liability, which characterizes most legal scholarship and federal legislation on credit card fraud and applies corrective mechanisms only after the damage is done. Instead, this article focuses on preempting credit card fraud by tackling the root causes of the problem: the built-in incentives that keep the credit card industry from fighting fraud on a system-wide basis. This article examines how credit card companies and banks have created a self-interested infrastructure that insulates them from the liabilities and costs of credit card fraud. Contrary to widespread belief, retailers, not card companies or banks, absorb much of the loss caused by thieves who shop with stolen credit cards. Also, credit card companies and banks earn fees from every credit card transaction, including those that are fraudulent. In addressing these problems, this article advocates broad reforms, including legislation that would mandate data security standards for the industry, empower multiple stakeholders to create the new standards, and offer companies incentives to comply by capping bank fees for those that are compliant, while deregulating fees for those that are not compliant.



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