20200927 The FinCEN Files - misleading the public and benefiting from criminal conduct: Page 4 of 10

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.

Those who have come into possession of the information have no statutory duty of confidentiality

I have heard the argument that the documents and the information extracted from them is in the hands of "responsible journalists."

I dispute that any journalist who is handling information illegally obtained which puts people at risk because they complied with the law can be considered "responsible."
Also, while a journalist does have a right to protect his source, he does not generally have a right to protect the documents. Of course, the original documents may have been handed to a lawyer who would claim legal advice privilege in the documents but it is difficult to imagine that any court would sustain that claim now that there have been disclosures and publication of documents.

There has been redaction of some parts of documents that have been published but that, in my view, does not amount to "non-publication."

It would be supremely ironic if those holding the documents or having had access to them were to claim that they have rights to keep them private when the only reason they are holding them is because someone deliberately took action to destroy privacy which is protected by the state.

The extraction and publication of SARs and the building of articles on them has a chilling effect on the filing of reports

There is a tacit agreement between governments and those who run businesses in their jurisdiction that the information they submit is protected from prying eyes.

The reasons for this is that SARS are not evidence of a crime. They are an indication that a regulated business has identified something sufficiently unusual in the conduct of a transaction or a person they are dealing with that they think that the information they have gathered might, in the hands of a centralised data collection and analysis agency (in this case FinCEN), be added to other information which will be of interest.

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