Comment by bradley13
1 year ago
This bit is downright scary: "the bank cannot explain why SARs [Suspicious activity reports] triggered a debanking, because disclosing the existence of a SAR is illegal. 12 CFR 21.11(k) Yes, it is the law in the United States that a private non-court, in possession of a memo written by a non-intelligence analyst, cannot describe the nature of the non-accusation the memo makes. Nor can it confirm or deny the existence of the memo."
I get why this is insane but I also get why the law is there which leaves me in a wired spot. Part of me wants to say something along the lines of "make SAR's disclosable / viewable to American citizens or legitimate users" but you can't really do that because the bad guys will quickly exploit any escape hatches like this.
What do others think about this? Because I'm kinda stuck in the middle about them.
If there is evidence against you, you surely have the right to know of it and to contest it! That's pretty fundamental to any reasonable justice system.
But the SAR itself, from how it sounds in the OP, is not the trigger that makes a person/business unbankable across the entire banking system - only at that single bank.
The OP article makes a reasonable point that administration officials can and do exert pressure on banks to withhold services to certain industries like debt collectors. And there indeed is a slippery slope there, and one that VCs with significant exposure to crypto are motivated to highlight.
But “withholding evidence,” and the SAR secrecy specifically, doesn’t seem to be a mechanism by which that happens. I’m far more concerned with what might cause an individual to lose access to all banks than what might cause them to lose access to one.
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You have no right to a banking relationship, so there is no justice involved.
It's not scary until everyone stops accepting cash.
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But debanking is not a criminal charge. The US has thousands of banks, surely one of them would take your business.
You’ve stipulated that the debanking was ok but that not disclosing why was problematic?
How about this:
1. Corporations are highly regulated legal constructs. Being given an extraordinary right (immunity for shareholders) they should be expected to return significant value to society. I propose that value should be “lack of freedom of association” - eg I don’t think corporations should be allowed to stop doing business with, or refuse to do business with, anyone citizen, except after conviction in a court of law for behavior directly related to that business.
2. Government should not be able to use their secret monitoring to prevent anyone from doing anything. No lists, secret orders, etc. If government wants someone debanked, take it to court.
Finally, if corporations can’t debank people, how do they handle unusual cost/risk? With pricing, of course. If porn and crypto transactions pose extraordinary financial risk, then allow pricing based on actual financial risk.
>Finally, if corporations can’t debank people, how do they handle unusual cost/risk? With pricing, of course. If porn and crypto transactions pose extraordinary financial risk, then allow pricing based on actual financial risk.
And you're absolutely certain that powerful and vocal crypto people won't claim that this special pricing is discrimination as they're doing now with debunking ?
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> I don’t think corporations should be allowed to stop doing business with, or refuse to do business with, anyone citizen, except after conviction in a court of law for behavior directly related to that business.
I would quit contracting on the spot if that became the law.
Some clients deserve to be fired or avoided.
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The middle ground seems to be allowing SARs (which are analogous to tips to police officers), but not requiring banks keep them secret from the customer. The bank could decide to do so, but also could decide not to, like any other speech.
What is the incentive to divulge the information if they don't have to? Customer service? "We're the one bank that will tell you why we are dropping you as a customer"?
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You should see the rules about discussing SARs you are asked to respond to, as an employee of a bank, with your colleagues and managers...
When a case is brought to court, they have to outline the methods used to determine the perpetrator. Why is it okay to do that for things like murder and other crimes but not for banks?
SAR's can be discussed when criminal charges are filed.
The most famous case I know of that stems from a publicly available SAR is former Speaker of the House Denny Hastert (R-Il) after his retirement from the House, when he was a lobbyist. He was being blackmailed by someone for his previous sexual assaults from his days as a high school teacher and wrestling coach three decades earlier, before he went into politics. He went to a bank to withdraw a bunch of cash to pay his blackmailer, and the bank started to fill out the form they do whenever you withdraw over $10,000 in cash (not a SAR, just a regular form). He saw the form being filled out, and decided he didn't want a paper trail with the government showing he was being blackmailed. So instead he stood in line hundreds of times at the bank, withdrawing $5,000 each time. This was why a SAR was filed, because he was clearly doing something called "structuring" which is setting up transactions deliberately to avoid those disclosure rules. After the FBI investigated, they decided that they couldn't get him for child sexual abuse, because it had been so long ago that the statue of limitations had expired. But they could get him for structuring, to which he plead guilty and served 15 months in jail.
Besides the fact that knowing about when they are filed would tip off criminals, there is also the fact that oftentimes they are filed for perfectly innocuous reasons, and are never investigated and don't go anywhere. Not ideal to have publicly available "this guy did something suspicious" flags that have not been investigated further looming over you and haunting the rest of your life. Since SAR's are not shared with other financial institutions, they won't follow you the same way.
The law seems to be punishing people based on secret judgements over sealed "non-accusations".
Sorry, but no, I can't see why a country would want a law like this.
Honestly, my country had a dictator impose a Constitution that made sure every person had access to banks over 200 years ago (we haven't had a democracy at that point, but nobody even discussed it since, because nobody disagrees). I also can't understand how come the US treats that system so frivolously.
This is all tied to the war on drugs and laundering of drug money (post-9/11 it become about terrorism as well, but again, more on drug money being funneled into terrorist groups)
There are enough people in the US that think that the mere existence of drug users is an indictment of society, so any action taken to limit the ability of people who sell drugs is justified. You also see this with asset forfeiture laws.
So the reason these laws exist is the people against drugs, unable to see that the war on drugs has been lost for over 20 years at this point, want to impose more and more draconian restrictions around them which just fuels the power of cartels and criminal gangs selling drugs.
If the war on drugs worked then why can you get them in every high school and prison in the US?
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> What do others think about this?
Stop with the Al Capone, totally dumb, angle: instead of arresting him for his actual crime, they arrested him because he didn't pay his taxes. Something dumb like that. And everybody applauds as if it was so brilliant. It's not.
What I think is: arrest people for the actual crime they commit... and leave honest people the fuck alone.
Of course it is scary. This is totalitarianism plain and simple. Secret laws. Secret rules. All these do exist (not necessarily only for SARs, where the law is not necessarily secret) when they definitely should not.
The excuse "(but) This is very much the law." isn't much of an excuse.
Last I checked the numbers estimated that, worldwide, KYC/AML costs on business where more than $180 bn while only $12 bn of funds were frozen. And frozen do not mean confiscated: a part of these are unfrozen and rightfully returned to their owners.
So that whole totalitarian, dystopian, system is a gigantic net loss.
And for what? To please bureaucrats who can do nothing else but push papers, create laws and rules and put ever more burden on everybody else.
But the worse of it all is that it gives a perfectly valid excuse for banks to debank anyone they don't like: seen that they don't need to justify anything they can just say "we're sorry we cannot say anything".
Wait, no, that's not the worst of it all. In several countries in the EU like France and Belgium the local IRSes do basically run ads explaining how you can denounce your neighbor.
I've heard a number floating in floating (devs in charge of these systems do talk): 25% of all the self-employed people have had at least one SAR.
On my LinkedIn I see people proudly posting 3rd-reich stuff like "The previous chief compliance officer said there were weeks where they had zero SAR". Basically implying that the previous dude was not filling enough reports and that he was so happy to get the job so that he could run those numbers up.
Burn that entire system. Just burn it to the ground.
There is no moral justification to freezing the bank accounts of truckers in Canada.
I don't care that "this is the law". Laws should be about justice.
This has absolutely nothing to do with being just.
How does that not violate the due process clause? It's pretty clear they're acting "under color" of the state.
"No person shall ... be deprived of life, liberty, or property, without due process of law"
A SAR does not deprive you of life, liberty or property.
It de facto describes you of property if you have to carry all your wealth as cash, which is then (at least stochastically) subject to civil forfeiture and/or everyday crime.
Due process is related to legal proceedings - this is a commercial relationship.
I have a friend that is constantly being debanked and his wires getting lost because he has the same name as politically exposed Russian person.
Banks do not negotiate. They just kick him off and sometimes even lose his money.
There is nothing he can do, even though everyone who would look the issue would figure out it's just a shitty automatic system flagging it because of an unrelated person 's name. It would cost too much time and money for banks to fix this mistake, so giving a boot is cheaper.
Sounds like a big inconvenience, did he try to change his legal name?
Edit: I have no idea why this legitimate question is being down voted. I'm not suggesting that he should change his name or even that such a solution is an acceptable state of affairs. And the replies received re:past names are furthering discussion.
Apparently AML/KYC programs do consider past names so that people can't simply change their name to avoid sanctions. But one would think if they were going into that much detail they would be able to tell that you aren't the same person as the sanctioned entity.
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I’m surprised there is no redress number like for plane flights.
What's more: if you exhibit knowledge of the SAR requirement to a banker, they're supposed to file a SAR on you just for this, even if nothing else about your transaction trips the SAR threshold.
Absolutely, it's one of the most undemocratic, potentially violative of 1st amendment laws that is out there.
This is from the point of view that money laundering as a law is essentially thoughtcrime. The police state has done an orwellian job of normalizing not privacy, but instead telling the government the reason you are doing every transaction. Then, any attempt to not tell the government is "money laundering".
Of course, if you are the state, the powers of this tool are alluring. Imagine if the state could compel citizens to write down what they're thinking, and compel justifications for everything they do in life. Think of how many crimes we could solve! Think of how many bad folks we can catch ahead of time!
> ...is essentially thoughtcrime > The police state has done an orwellian job... > Then, any attempt to not tell the government is "money laundering".
Exactly.
But the really most shocking is the number of people that'll find excuses for such a dystopian system.
Now of course very few bite the hand that feeds them: when you literally work on software facilitating the handling of SARs, you need to do post-fact rationalization of your acts and life choices.
I hope the new administration burns that profoundly nightmarish system to the ground.