Today marks the 55th anniversary of the Bank Secrecy Act (BSA), a law that has immensely shaped the relationship between financial institutions, the government, and individual privacy. Enacted in 1970, the BSA was designed to help detect and prevent money laundering, tax evasion, and other financial crimes. The BSA mandates the reporting of large cash transactions over $10,000; suspicious activities that might indicate criminal behavior, regardless of transaction amount; and certain foreign financial accounts.
The BSA was initially meant to regulate banks only. In the 1980s, this coverage extended to casinos and currency exchangers to fight the War on Drugs. Securities brokers were added to the list with the creation of the Financial Crimes Enforcement Network (FinCEN) in the 1990s. The Patriot Act significantly broadened the BSA's reach by extending anti-money-laundering (AML) obligations to a wide range of financial institutions. In the 2010s, FinCEN managed to extend the BSA to such companies as PayPal, Venmo, and Western Union. The Anti-Money Laundering Act of 2020 significantly updated the BSA by expanding its scope to include digital assets, requiring the reporting of corporate beneficial ownership, and strengthening FinCEN's enforcement and data-sharing powers.
By requiring banks, credit unions, and other financial institutions to collect this level of data, the BSA has turned private institutions into surveillance agents for the state. The purpose of the Fourth Amendment was to prevent government intrusion into private affairs without judicial oversight. With the BSA, the government can monitor, store, and analyze citizens' financial data without ever proving wrongdoing. The Supreme Court ruled in Miller v. United States (1976) that there is no reasonable expectation of privacy in bank records. As such, law enforcement can use this Supreme Court case as precedent to gain access to large amounts of financial data under the guise of crime prevention. For more on the constitutional issues with the BSA, you can read this Coin Center report here.
Speaking of crime prevention, how is that going? Financial institutions employ over 14,000 individuals and spend upwards of $8 billion annually to comply with BSA regulations. What do the American people get for that? Has financial crime dropped as a result of the BSA? It is difficult to tell. This is not simply because the FinCEN interim director said in 2022 that there are no precise metrics to answer that question. The Government Accountability Office (GAO), which is the legislative watchdog, had something to say on the matter. More specifically, in a 2022 GAO report, the DOJ said that there is such a data overload that they are unable to meaningfully prioritize the data. That lines up with a 2019 GAO report stating that it was unable to determine whether the reporting results in prosecutions.
According to the Bank Policy Institute, less than 4 percent of Suspicious Activity Reports (SAR) that banks have to file per BSA mandate have any sort of follow-up. Only a small subset of these result in arrest or conviction. Looking at last year, out of the 27 million reports filed for the BSA, the IRS only initiated 372 investigations (or less than 0.001 percent). Not only are banks wasting countless hours and spending $8 billion annually to comply with the BSA, but there are many false positives or low-value leads. This minuscule benefit also undermines the justification for violating civil liberties.
Plus, it has a chilling effect in the finance industry. As the Competitive Enterprise Institute (CEI) is right to point out, the BSA has the ability to discourage small banks and fintech firms from innovating since they are focused on regulatory compliance instead of serving customers or developing new products. This concept coincides with a 2022 Cato Institute report on the BSA's inefficacy: "These rules have also likely contributed to financial firms' hesitancy to work with emerging industries, such as cryptocurrency-related companies and blockchain-based technologies." Every dollar spent satisfying redundant filings is a dollar not spent building new financial products, expanding access to credit, or improving cybersecurity. The large compliance costs also make it easier for large incumbents to maintain market concentration.
The mission creep over the decades turned a narrow crime-fighting measure into a system of massive financial surveillance. The banks should decide what information they collect, who they do business with, and what risks they are willing to take on. If law enforcement wants to access the data, they should get a warrant. Increasing the threshold to adjust for inflation or removing the reporting requirements of the BSA would be inadequate because it minimizes, but does not eliminate the scope of its harm. The only prudent measure that would protect civil liberties while removing regulatory waste would be to repeal the BSA in its entirety, much as CEI has argued for 25 years. Letting it continue for another year would cost the American people much more than a pretty penny.
No comments:
Post a Comment