Editor's Note: EMV Migration Forum This white paper was published in May 2015 on the EMV Migration Forum's EMV Connection website. Copyright © 2015 by EMV Migration Forum and Smart Card Alliance. All rights reserved. Reprinted with permission.
Some U.S. payment networks are implementing EMV fraud "liability shifts" effective October 2015. With these liability shifts fast approaching, many card issuers, merchants, acquirers and processors implementing EMV chip technology are asking, "Who is liable for what, and when, under these fraud 'liability shifts?'" The EMV Migration Forum is providing this information collected from certain payment networks to help payment industry participants better understand the corresponding network's policies.
Today, across payment networks, liability for card-present fraudulent transactions is generally the responsibility of card issuers. Beginning in October 2015, certain U.S. payment networks independently plan to implement fraud liability shifts that will impact transactions from a counterfeit card created from the magnetic stripe on a chip card and/or lost or stolen card transactions. As of that date, liability for those transactions generally will shift to the acquirer/merchant in certain cases if they do not use EMV chip-enabled1 devices and applications to process payment transactions. The impact of these October 2015 liability shifts to the acquirer/merchant depends on whether:
ATMs and AFDs: Liability shifts impacting ATMs and automated fuel dispensers have different time frames and are not addressed in this document.
Fallback Transactions: For fallback transactions2, as long as the acquirer/merchant sends the appropriate indicators identifying the transaction as fallback, the issuer will bear the liability if they approve the fallback transaction. However, fallback rates that exceed the acceptable thresholds set by the payment networks may result in other impacts to the acquirers/merchants as determined by those payment networks.
Applies to Accel, American Express, China UnionPay, Discover, MasterCard, NYCE Payments Network, SHAZAM Network, STAR Network and Visa.
Beginning in October 2015 for the nine payment networks noted immediately above, when a merchant accepts a magnetic stripe card that was counterfeited with track data copied from an EMV chip card, and the card is subsequently swiped at a POS device/application that is not EMV chip-enabled, and the transaction is successfully processed, the acquirer/merchant may be liable for the chargeback resulting from the fraud.
The above counterfeit card liability shift only pertains to transactions where the magnetic stripe was read and does not apply to contactless transactions.
There is no anticipated liability shift for fallback transactions, as they are a result of the chip on the card not being read and the authorization message does not contain chip data. Fallback transactions are therefore considered magnetic stripe transactions and liability remains with the card issuer.
The following applies to American Express, Discover and MasterCard.
Beginning in October 2015 for American Express, Discover and MasterCard, the acquirer/merchant may also be liable for a chargeback resulting from fraud if:
No CVM (Cardholder Verification Method) transactions that meet the No CVM requirements of the payment network are not affected by the EMV lost or stolen liability shift.
PIN Entry Bypass: In the case where PIN entry bypass is invoked and is properly identified by the acquirer/merchant in the authorization message as specified by the EMV specification, liability stays with the issuer if the issuer approves the transaction.
Applies to Accel, China UnionPay, NYCE, STAR Network and Visa.
There is no expected change to Accel, China Union Pay, NYCE, STAR Network or Visa liability for lost or stolen card fraud, and accordingly, this liability remains with the issuer.
It is important to understand for each payment network the consistencies in liability shifts for cross-border transactions. This section describes liability shifts for U.S. acquirers/merchants when non-U.S.-issued cards are used at U.S. merchants and liability shifts when U.S.-issued cards are used at non-U.S merchants.
Counterfeit Liability Shift: For the global payment networks listed in the Counterfeit Liability Shift Fraud section above (American Express, China UnionPay, Discover, MasterCard and Visa), their respective counterfeit liability shift is consistent for all cross-border POS transactions for participating countries in the EMV liability shift.
Lost-or-Stolen Liability Shift: In countries where American Express, Discover and MasterCard have lost-or-stolen liability shift policies, their respective policies are consistent for domestic and cross-border transactions. For the global payment networks listed above that do not have a U.S. lost-or-stolen liability shift (China UnionPay and Visa), lost-or-stolen liability shift on cross-border transactions does not apply even if the card-issuer's country has implemented a lost-or-stolen liability shift.
This document summarizes, as of the publication date, the anticipated October 2015 U.S. liability shifts of the payment networks noted above in the specific scenarios described above. Certain scenarios, such as merchant stand-in and voice authorization, are not impacted by the October 2015 liability shifts described above, and liability in those situations is expected to remain as it is today.
When considering the October 2015 liability shifts described above, it helps to first define the type of fraud, and then assess the technology being employed by the applicable parties in light of applicable payment network rules. In summary, the party supporting the superior technology for each fraud type will prevail in a chargeback (for the scenarios specifically addressed above and except as otherwise noted); and in case of a technology tie, the fraud liability as of October 2015 generally is expected to remain as it is today – with the issuer.
There are additional scenarios that could affect liability that are not covered in this document, and the payment networks named above do not reflect all of the networks that may have October 2015 liability shifts, but rather the ones that provided information to the EMV Migration Forum in the preparation of this document. Additionally, certain networks identified above only provided information regarding liability shifts for counterfeit cards (not for lost or stolen cards).
Notwithstanding anything to the contrary in this document, each payment network determines its own policies and practices (including but not limited to rules regarding liability and timing of the liability shifts), all such policies and practices are subject to change, and liability in scenarios and/or for payment networks not specifically addressed above may differ.
Merchants, acquirers, processors and others implementing EMV chip technology in the U.S. are therefore strongly encouraged to consult with their respective payment networks regarding applicable liability shifts and rules.
While great effort has been made to ensure that the information in this document is accurate and current, this information does not constitute legal advice and should not be relied on for any legal purpose, whether statutory, regulatory, contractual or otherwise. All warranties of any kind are disclaimed, including all warranties relating to or arising in connection with the use of or reliance on the information set forth herein. Any person that uses or otherwise relies in any manner on the information set forth herein does so at his or her sole risk.
1 Chip-enabled device or terminal: A terminal that has, or is connected to, a contact chip card reader, has an EMV application, and is able to process EMV transactions.
2 Fallback transaction: A transaction that is initiated between a chip card and a chip terminal but chip technology is not used and the transaction is completed via magnetic stripe.
3 Data from a contact chip card.
4 Cross-border transaction: A transaction where a card issued in one country is used for a payment transaction in a different country.
About the EMV Migration Forum: The EMV Migration Forum is a cross-industry body focused on supporting the EMV chip implementation steps required for payment networks, issuers, processors, merchants, and consumers to help ensure a successful introduction of more secure chip technology in the United States. The focus of the Forum is to address topics that require some level of industry cooperation and/or coordination to migrate successfully to chip technology in the United States. For more information on the EMV Migration Forum, please visit www.emv-connection.com/emv-migration-forum/.
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