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Financial services firms are racing to describe themselves as "AI-powered." Websites tout machine learning algorithms, marketing materials reference proprietary AI systems, and social media posts suggest cutting-edge technological capabilities. Some of these claims are accurate, but many are not.
AI-washing - overstating or misrepresenting artificial intelligence capabilities - has caught the SEC's attention. The commission's 2025 examination priorities explicitly call out AI-washing, and enforcement actions have already begun. Delphia (USA) Inc. paid $225,000 for claiming their AI used client data to provide investing advantages when they'd already admitted during an SEC examination that no such capability existed. Global Predictions Inc. settled for $175,000 for unsubstantiated AI performance claims.
But This Isn't Really About AI
AI-washing is getting attention because artificial intelligence is the current competitive battleground. But the underlying issue isn't new - it's about two foundational requirements that registered investment advisers have faced since the SEC's Marketing Rule took effect in November 2022.
The Marketing Rule establishes that if you make a claim in an "advertisement," you must be able to substantiate it with appropriate documentation. And you must maintain records of those advertisements. These aren't new concepts specific to AI - they're baseline compliance obligations that apply to any claim your firm makes publicly.
What Counts as an Advertisement Under the Marketing Rule
The Marketing Rule defines an advertisement broadly: any direct or indirect communication disseminated to more than one person that offers advisory services or promotes the adviser. Your website qualifies. So do social media posts, email campaigns, video content, and even certain standardized client communications.
This means two things:
1. You must maintain records of these advertisements. In a format that preserves what was communicated.
2. Any claim you make in those advertisements must be substantiable. If you claim superior performance, specialized expertise, proprietary technology, or any other competitive advantage, you need documentation proving that claim is accurate.
Why Financial Services Faces High AI-Washing Risk
According to analysis by the New York State Bar Association, "the financial services industry is at high risk when it comes to AI washing." When firms describe portfolio optimization as "AI-driven" or market "machine learning-enabled" trade surveillance, those statements are advertisements that must be both documented and provable.
We've seen this pattern before. BNY Mellon paid $1.5 million for marketing funds as undergoing rigorous ESG quality reviews, when documentation showed many holdings had received no such analysis. Companies made bold sustainability commitments, then struggled to demonstrate progress. Diversity initiatives followed the same arc: impressive public statements without corresponding documented actions.
AI-washing is simply the newest iteration. The SEC is applying existing anti-fraud provisions - Section 10b-5 of the Exchange Act, Section 206 of the Investment Advisers Act - to pursue firms making unsubstantiated claims about AI capabilities that are increasingly considered material to investment decisions.
The Challenge of Documenting Digital Advertisements
The foundational requirements haven't changed, but the nature of advertisements has. Modern digital communications are dynamic, visual, and context-dependent in ways that make traditional recordkeeping approaches inadequate.
Consider where your claims live. A services page describes your "proprietary AI trading system" - language that might get refined monthly. A LinkedIn post shares a GIF of upward-trending performance alongside text about "algorithmic advantages." A video testimonial shows a client discussing results from your "machine learning models." A webpage displays different content depending on the visitor's location.
Each of these is an advertisement under the Marketing Rule. Each requires documentation. And critically, implied meaning matters as much as explicit statements. A GIF suggesting performance, combined with AI references, creates an impression that must be substantiable - even if the words are carefully hedged.
Basic recordkeeping approaches weren't designed for this reality. A quarterly screenshot doesn't capture video content, subtle messaging changes over time, or what different audiences saw based on location or device. When regulators examine whether you can substantiate your claims, they first need to be sure of everything that was conveyed.
Essential Capabilities for Marketing Rule Compliance
Effectively meeting the Marketing Rule's recordkeeping requirements for digital advertisements demands several capabilities:
Regular interval capture. Systematic documentation at consistent intervals that builds a defensible timeline of how your content evolved, proving what was claimed and when it changed.
Native format preservation. Capturing the actual HTML, CSS, videos, and interactive elements as rendered. Screenshots don't preserve embedded videos, GIFs, interactive elements, or dynamic content that conveys meaning in your advertisements.
Audience-specific delivery. How content appeared to different audiences matters - the version a California prospect saw versus what appeared to a New York investor, for example. Capturing geo-targeted, personalized, or device-specific variations is essential for proving what was communicated.
Metadata and attribution. When was content published? What changes were made over time? This documentation shows whether claims escalated faster than capabilities improved.
From Greenwashing to AI-Washing: A Recurring Pattern
AI-washing is getting regulatory attention because it's the current competitive focus. But the underlying challenge is permanent: firms face pressure to appear more sophisticated than they are, and marketing tends to get ahead of operational reality.
What's changed is that digital advertisements are harder to reconstruct after the fact. When your website, social media, and marketing materials constantly evolve - and when meaning is increasingly conveyed through visual and dynamic elements - you need communications compliance systems designed for that reality.
The firms that can make competitive claims confidently are those with recordkeeping infrastructure to prove what they claimed AND substantiate that those claims were accurate.
How MirrorWeb Can Help
MirrorWeb Insight captures websites and social media in native format at regular intervals, preserving dynamic content - videos, GIFs, interactive elements - with full context and attributed meaning for every audience. Marketing Rule recordkeeping is mandatory for SEC-registered entities, and Insight delivers the defensible documentation your firm is required to maintain.
