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Digital Wallets: The Honor All Devices Rule

posted by Adam Levitin

Every wondered how ApplePay works?  What the whole deal with Chip cards is?  Those contactless readers at stores?  If you're looking to nerd out on 21st century payment technology...and its legal and business implications, look no further.  I have a new paper out entitled Pandora’s Digital Box:  Digital Wallets and the Honor All Devices Rules.  The paper was commissioned by the Merchant Advisory Group, a retail industry trade association that focuses on payment issues.  The paper, which benefitted from interviews with the payments teams from a number of the largest merchants in the US, covers the range of technologies known as "digital wallets," including mobile wallets like ApplePay and Samsung Pay (with the magnetic stripe emulation).  The paper focuses on the potential benefits, but particularly the risks posed by digital wallets to merchants, and the legal implications, which are primarily antitrust issues.  

The basic issue with digital wallets is that they aren't all the same in terms of costs and benefits, but merchants have to accept them equal on an all-or-nothing basis.  Digital wallets involve lots of different technological and business arrangements that affect security, control over data, control over customer relationships, IP litigation risk, choice of payment method, and cost of payment.  Some wallets are very attractive to merchants; others less so.  Merchants, however, cannot accept digital wallets selectively or condition the terms of acceptance for particular wallets.  This is because Visa, MasterCard, and American Express all have so-called "Honor All Devices" rules that require merchants to accept payments without discrimination from all devices using any technology accepted by the merchant.   The arrangement has the nasty (but probably not coincidental) effect of foreclosing entry to digital wallets that offer cheaper payments, such as those that use PIN debit or ACH.   

If this sounds a bit like a redux of the Honor All Cards rule and the two previous monumental rounds of antitrust litigation that produced (first on the tying of signature-debit and credit, second on the tying of different credit products, among other things), well, you're right. The problems that arise with the Honor All Devices rule show that things have not been properly resolved in terms of anticompetitive behavior in the payment card space, and the issues are just migrating over to new technologies.  

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