20200927 The FinCEN Files - misleading the public and benefiting from criminal conduct

20200927 The FinCEN Files - misleading the public and benefiting from criminal conduct

Nigel Morris-Cotterill

There is, at present, a state of excitement amongst the media, some financial crime consultants and some politicians in response to what they are being told is public opinion.

The so-called FinCEN Files were heavily telegraphed in a media blitz more akin to the launch of a Hollywood film that has cost a fortune but the result isn't as good as was hoped.

In the USA and the UK, mainstream media outlets have published a series of articles that, they say, arise because of what it has found in documents obtained from the USA's Financial Intelligence Unit, FinCEN.

No one seems to notice that all those who are profiting from the articles are gaining a benefit from criminal conduct because those documents were obtained illegally.

That's just one reason why I would not have worked on the FinCEN papers, had I been asked (I wasn't and I'm glad).

First, let me declare an interest.

Some 25 years ago, I was the principle point of contact for money laundering, etc. related matters for the BBC (News, Business, World Service and Current Affairs), for Sky News, For The Times, The Financial Times, The European (now defunct and the name is in use by someone else), The Independent, Complinet (which became part of Thompson Reuters Regulatory service and is now divided between TR and Refinitiv) and other broadcasters, newspapers and magazines.

I was always at pains, both when briefing journalists and when on air, to be sure that reporting was never sensationalist and that it was complete and balanced. There were often political (small ″p″) and Political (capital ″P″) aspects to the subjects under discussion.

Those prejudices also had to be eradicated.

The subject was the story.

That spirit of independence has all been upended with the reporting of The FinCEN files. Across the spectrum of mainstream media, the story is the story.

A huge public relations campaign was launched by the outlets that would carry the articles and the group behind the articles, the International Consortium of Investigative Journalists.

Balance has been lost: prejudice and a lack of clarity keeps readers interested in the excitement but fails to correctly inform.

I have been consulted by a member of that group in relation to another subject and willingly assisted.

I would not have assisted in relation to the FinCEN Files if I had been invited to. To put it simply, it would be against my principles and sense of honour. This is why.

The source material was illegally obtained

Some three years ago, US website Buzzfeed was offered material which a member of staff at FinCEN had illegally removed from her employer.

To explain - a individual who is authorised to access a computer system in pursuit of his employment turns that legal access into an illegal access when his purpose in accessing that computer falls outside the authorised purposes.

FinCEN is the USA's Financial Intelligence Unit which means that it receives, from tens of thousands of businesses, reports of

a) transactions that exceed a threshold figure which varies according to the nature of the business and
b) suspicious activity reports, known as SARs, which detail concerns that the reporting business has that there is something about the transaction, or proposed transaction, that may indicate that the customer or client is directly or indirectly involved in a financial crime such as money laundering or terrorist financing.

I'll explain more on this later.

It is a criminal offence for any person, be it an individual or a business, to reveal the fact that a suspicious activity report has been filed with FinCEN.

It is, especially, a criminal offence to reveal any information that may tend to reveal that a suspicious activity report has been filed in such a way that the subject of the report may find out about it.

That's before one looks at any non-disclosure agreements that an employee of the US Treasury and its units (of which FinCEN is one) enter into. And we know they do, and that they are subject to vetting before starting work there.

There is a technical issue with the law relating to data.

Data is not a thing therefore, in the strict sense of the word, it cannot be stolen.

Because it cannot be stolen, anyone who receives it is not "handling stolen goods" or "receiving stolen goods."

But there is a parallel. Except for cash and coin, money is not a thing either.

That meant that if a cheque was stolen, it was the paper not the value that the thieves took.

As almost all money is now in electronic not physical form, many countries have modified their laws so that value can be stolen even if there is no physical form.

And it is the dealing with electronic money as well as cash that is covered by e.g. counter-money laundering laws.

Computer crime laws have been designed to achieve something similar but only in relation to the initial extraction of the data. Reuse of the data appears, in general terms, to be outside that offence and to fall within the civil law regime.

But the FinCEN data is different because it is data that is protected by statute. To put it bluntly, the material, once extracted from FinCEN’s databases or files is of criminal origin.

How could I not refuse to go anywhere near it?

My entire professional life is about identifying and preventing the risk of criminal conduct. Every part of my principle and honour says that the use, in any way, of the material extracted from FinCEN is wrong - even if there is a benefit to it.

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