I am very pleased to co-chair again the Practicing Law Institute’s 2023 Anti-Money Laundering Conference on May 16, 2023, starting at 9 a.m. in New York City (the event also will be virtual).
I am also really fortunate to be working with co-chair Elizabeth (Liz) Boison
On Friday, the Department of Justice (“DOJ”) announced two developments: First, the release of a 66-page report, The Role of Law Enforcement in Detecting, Investigating, and Prosecuting Criminal Activity Related to Digital Assets (the “Report”), issued under President Biden’s March 9, 2022 Executive Order on Ensuring Responsible Development of Digital Assets. Second, the establishment of the Digital Asset Coordinator (“DAC”) Network, a nationwide group of prosecutors designated as legal and technical experts in digital asset cases.
We focus here on the regulatory and legislative recommendations of the Report, which seek to expand significantly the ability of the DOJ to investigate and prosecute offenses involving digital assets. The recommendations include increasing criminal penalties, extending statutes of limitations, expanding venue provisions, enhancing the government’s forfeiture powers, and prohibiting virtual asset service providers from “tipping off” the subjects of grand jury subpoenas received by the providers. The recommendations also include making clear that the federal criminal law against maintaining an unlicensed money transmitter applies to peer-to-peer platforms that purportedly do not take custody or assume control over the digital asset being exchanged; ensuring that the Financial Crimes Enforcement Network (“FinCEN”) issues a final rule expanding the application of the Travel Rule under the Bank Secrecy Act (“BSA”) to digital asset transfers; and expanding or arguably clarifying that the BSA applies to platforms dealing in non-fungible tokens, or NFTs, including online auction houses and digital art galleries.
The Financial Action Task Force (“FATF”) recently issued an updated review of the implementation of its anti-money laundering (“AML”) and counter-terrorist financing (“CFT”) standards to financial activities involving Virtual Assets (VAs) and Virtual Asset Service Providers (VASPs), entitled Targeted Update On Implementation Of The FATF Standards On Virtual Assets And Virtual Asset Service Providers (“Report”).
This post highlights the three main takeaways from the Report – with a focus on the FATF’s Travel Rule. Condensed, the FATF Travel Rule requires the private sector to obtain and exchange beneficiary and originator information with VAs transfers valued at $1,000 or more. The Report also suggests that some DeFi arrangements are not truly “decentralized.”
We are very pleased to be moderating, once again, the Practising Law Institute’s 2022 Anti-Money Laundering Conference on May 17, 2022, starting at 9 a.m. This year’s conference will be both live and virtual — and it will be as informative, interesting and timely as always.
We are pleased to offer the latest episode in Ballard Spahr’s Business Better podcast series, The Business of Cryptocurrency. In this episode, we discuss the basics of money transmitter and Bank Secrecy Act registration and compliance program requirements. The episode also covers more complex regulatory issues confronting cryptocurrency exchanges, financial institutions, and other businesses
Travel Rule and Beneficiary Information Continues to Challenge Virtual Asset Service ProvidersIn late October, the Financial Action Task Force issued its long-awaited updated guidance on Virtual Assets and Virtual Asset Service Providers (“FATF Guidance”), an extremely lengthy and detailed document setting forth how virtual asset service providers (“VASPs”) and related virtual asset activities fall within the scope of FATF standards for anti-money laundering (“AML”) and countering the financing of terrorism (“CFT”). The FATF Guidance is important to VASPs worldwide, as well as the more traditional financial institutions (“FIs”) doing business with them. Because of its great breadth, we focus here only on its comments regarding implementation of the so-called “Travel Rule” for virtual assets. This portion of the FATF Guidance is particularly relevant to the U.S. because, as we have blogged, the Financial Crimes Enforcement Network (“FinCEN”) proposed regulations in 2020 – still pending – which would change the Travel Rule by lowering the monetary threshold for FIs from $3,000 to $250 for collecting, retaining, and transmitting information related to international funds transfers, and explicitly would make the Travel Rule apply to transfers involving convertible virtual currencies.
The FATF Guidance has additional relevance to U.S. VASPs and FIs because, this month, the U.S. President’s Working Group on Financial Markets (“PWG”), the Federal Deposit Insurance Corporation (“FDIC”), and the Office of the Comptroller (“OCC”) (together, “the U.S. Agencies”) issued a Report on Stablecoins (the “Report”). Stablecoins are digital assets designed to maintain stable value as related to other reference assets, such as the U.S. Dollar. In the Report, the U.S. Agencies delineate perceived risks associated with the increased use of stablecoins and highlight three types of concerns: risks to rules governing AML compliance, risks to market integrity, and general prudential risks. We of course will focus here on the Report’s discussion of AML risks, particularly because it repeatedly invokes the FATF Guidance, thereby illustrating the increasing efforts by governments to seek a global and relatively coordinated approach to addressing AML/CFT concerns regarding virtual assets.
Continue Reading Global Developments in AML and Virtual Assets: FATF Guidance and the Travel Rule, and U.S. Pronouncements on Stablecoins
Global AML Compliance Faces Challenges Relating to Regulator Expertise, the Travel Rule, Decentralized Finance, and “Regulator Shopping” Today we are very pleased to welcome guest blogger Federico Paesano from the Basel Institute on Governance (“Basel Institute”). The Basel Institute recently issued its Basel AML Index for 2021 (“Basel AML Index”). This data-rich and fascinating annual publication, one of several online tools developed by the Basel Institute to help both public- and private-sector practitioners tackle financial crime, is a research-based ranking that assesses countries’ risk exposure to money laundering and terrorist financing. This year, we will focus on the section of the Basel AML Index which analyzes data from the Financial Action Task Force (“FATF”) on how jurisdictions are responding to money laundering and terrorist financing threats related to virtual assets. The Basel AML Index concludes: “not well at all.”
Federico Paesano
is a Senior Financial Investigation Specialist at the Basel Institute’s International Centre for Asset Recovery, and leads its Cryptocurrencies and Anti-Money Laundering Compliance Training. For 14 years, Federico worked for the Italian Financial Police, ending his career as Chief Investigator, leading and conducting judicial and financial investigations, focusing in particular on economic crimes such as corruption and money laundering. In July 2009, he was seconded by the Italian Government to the European Union Police Mission in Afghanistan (“EUPOL”) as Mentor to the Minister of Interior on Anticorruption. Along with Europol and Interpol, Federico and the Basel Institute are co-organizing on December 7–8, 2021 the 5th Global Conference on Criminal Finances and Cryptocurrencies, which focuses on the emerging threat posed by criminals using new payment methods to conceal the proceeds of their crimes. His Quick Guide to Cryptocurrencies and Money Laundering Investigations may be found here.
The Basel Institute is a not-for-profit Swiss foundation dedicated to working with public and private partners around the world to prevent and combat corruption, and is an Associated Institute of the University of Basel. The Basel Institute’s work involves action, advice, and research on issues including anti-corruption collective action, asset recovery, corporate governance and compliance, and green corruption. Money Laundering Watch was pleased to have Gretta Fenner and Dr. Kateryna Boguslavska of the Basel Institute guest blog on the Basel AML Indices for 2020 and 2019.
This blog post again takes the form of a Q & A session, in which Federico responds to questions posed by Money Laundering Watch about the Basel AML Index 2021 and wider debates on the topic. We hope you enjoy this discussion of money laundering risks and virtual assets — which addresses regulators’ frequent lack of expertise, tracing of cryptocurrency transactions, the Travel Rule, the challenges posed by decentralized finance, “regulator shopping,” and more. —Peter Hardy and Andrew D’Aversa
Continue Reading The Basel AML Index 2021: Virtual Assets and Money Laundering. A Guest Blog.
European Commission Proposes EU-Level Supervisory Authority and Cryptocurrency Travel RuleJust as the United States has expanded significantly its anti-money laundering (“AML”) and countering the financing of terrorism (“CFT”) regulatory and enforcement regime through recent passage of the AML Act of 2020, the European Union (“EU”) has taken significant steps this summer towards implementing a rigorous new transnational AML enforcement framework. Recent legislative proposals by the European Commission (the EU’s executive branch) aim to combat cross-border crime by ensuring uniform implementation and enforcement of AML/CFT principles, rules, and regulations, and by creating new recordkeeping requirement for certain cryptocurrency transactions. Following the announcement of these legislative proposals, the European Banking Authority proposed in late July new EU-wide guidelines for AML/CFT compliance officers. We examine each of these in turn.
Continue Reading European Union Round-Up: A Summer of AML Enforcement and Compliance Proposals
Fourth and Final Post in a Series on the FATF Plenary OutcomesAs we have previously blogged (here, here and here), the Financial Action Task Force (“FATF”) held its fourth Plenary on June 21-25, inviting delegates from around the world to meet (virtually) and discuss a wide range of global financial crimes and ongoing risk areas. Following the Plenary, FATF issued reports to detail their findings on specific topics. This post highlights three takeaways from the report entitled Second 12-Month Review of the Revised FATF Standards on Virtual Assets (“Report”).
In June 2019, the FATF issued guidance instructing its 180 international member governments to demand that virtual asset service providers (“VASPs), such as cryptocurrency exchanges and digital wallet providers, collect “accurate originator information and required beneficiary information” on transactions totaling $1,000 or more (see here for our detailed blog post on this subject).
The FATF also agreed to undertake a yearlong review documenting the progress that its member countries have made towards implementing its guidance on regulation of VASPs. It released the findings of that review in July 2020 and committed to a second 12-month review by June 2021. The Report, based on the findings of a self-assessment questionnaire provided to 128 jurisdictions, sets out the findings of the second 12-month review.
Continue Reading FATF Continues to Stress AML Risks From Virtual Asset Service Providers
On May 21, 2021, the U.S. Department of Treasury (“Treasury”) released its American Families Plan Tax Compliance Agenda (“Agenda”), a comprehensive set of initiatives to increase tax compliance and close the “tax gap” between the amount taxpayers owe and the amount that is actually paid. While part of the $80 billion plan calls for providing Treasury and specifically the Internal Revenue Service (“IRS”) with additional resources to combat tax evasion, the Agenda also proposes revisions to current regulations and leveraging existing infrastructure to “shed light on previously opaque income sources;” namely, cryptocurrency. Although the sweeping Agenda obviously focuses on tax compliance, it also has related consequences for Bank Secrecy Act (“BSA”) compliance in areas where the BSA and the tax code overlap as to cryptocurrency.
The Agenda also represents the latest in a string of initiatives by the U.S. government regarding the increasing regulation of the use of cryptocurrency, whether by direct users, exchangers of cryptocurrency, or financial institutions with customers dealing in cryptocurrency. The Agenda represents both an acknowledgement by the U.S. Treasury that cryptocurrency use has become “normalized,” coupled with a clear signal that its use will be highly scrutinized and regulated.
Continue Reading As Treasury Eyes Crypto in Tax Compliance Agenda, Reporting Obligations May Increase – Including a Crypto “Form 8300” for Transactions over $10K