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EMV and the Changing Payment Space: The Liability Shift

By Adrian Lane

So far we have discussed the EMV requirement, covered the players in the payment landscape, and considered merchant migration issues. It is time to get into the meat of this series. Our next two posts will discuss the liability shift in detail, and explain why it is not as straightforward as its marketing. Next I will talk about the EMV specification’s application of tokenization, and how it changes the payment security landscape.

What Is the Liability Shift?

As we mentioned earlier the card brands have stated that in October of 2015 liability for fraudulent transactions will shift to non-EMV-compliant merchants. If an EMV ‘chipped’ card is used at a terminal which is not EMV-capable for a transaction which is determined to be counterfeit or fraudulent, liability will reside with merchants who are not fully EMV compliant. In practical terms this means merchants who do not process 75% or more of their transactions through EMV-enabled equipment will face liability for fraud losses.

But things are seldom simple in this complex ecosystem.

Who Is to Blame?

Card brands offer a very succinct message: Adopt EMV or accept liability. This is a black-and-white proposition, but actual liability is not always so clear. This message is primarily targeted at merchants, but the acquirers and gateways need to be fully compliant first, otherwise liability does not flow downstream past them. The majority of upstream participants are EMV ready, but not all, and it will take a while for the laggards to complete their own transition. At least two firms we interviewed suggested much of the liability shift is actually from issuing bank to acquiring bank and related providers, so losses will be distributed more evenly through the system. Regardless, the card brands will blame anyone who is not EMV compliant, and as time passes that is more likely to land on merchants.

Do Merchants Currently Face Liability?

That may sound odd, but it’s a real question which came up during interviews. Many of the contracts between merchants and merchant banks are old, with much of their language drafted decades ago. The focus and concerns of these agreements pre-date modern threats, and some agreements do not explicitly define responsibility for fraud losses, or discuss certain types of fraud at all. Many merchants have benefitted from the ambiguity of these agreements, and not been pinched by fraud losses, with issuers or acquirers shouldering the expense. There are a couple cases of the merchants are dragging their feet because they are not contractually obligated to inherit the risk. Most new contracts are written to level the playing field, and push significant the risk back onto merchants – liability waivers from card brands not withstanding. So there is considerable ambiguity regarding merchant liability.

How Do Merchants Assess Risk?

It might seem straightforward for merchants to calculate the cost-benefit ratio of moving to EMV. Fraud rates are fairly well known, and data on fraud losses is published often. It should be simple to calculate the cost of fraud over a mid-term window vs. the cost of migration to new hardware and software. But this is seldom the case. Published statistics tend to paint broad strokes across the entire industry. Mid-sized merchants don’t often know their fraud rates or where fraud is committed. Sometimes their systems detect it and provide first-hand information, but in other cases they hear from outsiders and lack detail. Some processors and merchant banks share data, but that is hardly universal. A significant proportion of merchants do not understand these risks to their business well, and are unable to assess risk.

Without P2PE, Will I Be Liable Regardless?

The EMV terminal specification does not mandate the use of point-to-point encryption. If – as in the case of the Target breach – malware infects the PoS systems and gathers PAN data, will the courts view merchants as liable regardless of their contracts? At least one merchant pointed out that if they are unlucky enough to find themselves in court defending their decision to not encrypt PAN after a breach, they will have a difficult time explaining their choice.

PCI <> EMV

The EMV specification and the PCI-DSS are not the same. There is actually not much overlap. That said, we expect merchants who adopt EMV compliant terminals to have reduced compliance costs in the long run. Visa has stated that effective October 2015, Level 1 and Level 2 merchants who process at least 75% of transactions through EMV-enabled POS terminals (which support both contact and contactless cards) will be exempt from validating PCI compliance that year. They will still be officially required to comply with PCI-DSS, but can skip the costly audit for that year. MasterCard offers a similar program to Visa. This exemption is separate from the liability shift, but offers an attractive motivator for merchants.

Our next post will discuss current and future tokenization capabilities in EMV payment systems.

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