Financial Crimes Enforcement Network (FinCEN)

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On December 3, 2018, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Financial Crimes Enforcement Network (FinCEN), the National Credit Union Administration, and the Office of the Comptroller of the Currency (together “the agencies”), issued a joint statement encouraging banks to test and implement innovative approaches to meeting their Bank Secrecy Act/Anti-Money Laundering (BSA/AML) obligations. The agencies hope to harness private sector innovation to better protect the financial system from financial crime and to allow financial institutions to make better use of limited compliance resources. The agencies identify in particular risk identification, transaction monitoring, and suspicious activity reporting as obligations that can benefit from innovation. They also identify internal financial intelligence units, artificial intelligence, and digital identity technologies as innovations that can help advance AML programs.

To foster innovation without fear of criticism, the agencies have laid out policies for how they will interact with banks piloting new technologies.

  • First, while the agencies may provide feedback, banks that pilot innovative technologies should not be subject to supervisory criticism for any failures in such pilot programs.
  • Second, “pilot programs that expose gaps in current BSA/AML compliance programs will not necessarily lead to supervisory action.” For example, “when banks test or implement artificial intelligence-based transaction monitoring systems and identify suspicious activity that would not otherwise have been identified under existing processes, the agencies will not automatically assume that banks’ existing processes are deficient.”
  • Third, the implementation of innovative approaches in banks’ BSA/AML programs “will not result in additional regulatory expectations.”
  • Fourth, FinCEN will consider requests for exceptive relief under 31 C.F.R. § 1010.970 to promote the testing of new technologies, provided that banks maintain the overall effectiveness of their AML programs.

The agencies’ joint statement did make clear, though, that while innovation is critical to continued protection against money laundering and other financial crime actors, it is not an excuse to fail to comply with current BSA/AML requirements. Banks “must continue to meet their BSA/AML compliance obligations, as well as ensure the safety and soundness of the bank, when developing pilot programs and other innovative approaches.” In making such determinations, “bank management should prudently evaluate whether, and at what point, innovative approaches may be considered sufficiently developed to replace or augment existing BSA/AML processes.” Such a decision should also address other factors like third-party risk management, compliance with other applicable laws and regulations, and issues of customer privacy. Banks also are encouraged to engage early with regulators regarding such programs to promote the agencies’ understandings of these programs and as “a means to discuss expectations regarding compliance and risk management.” Each of the agencies has committed to establishing projects or offices to support engagement on the implementation of such innovations.

The joint statement comes against a backdrop of continued increases for many banks in the costs of operating compliant AML programs, and continued enforcement – such as the recent $598 million settlement with federal regulators of alleged AML violations by US Bank — emphasizing the need for greater resourcing of AML programs. This has led many banks to consider innovations that might make compliance more efficient and reduce costs, but also has led Congress to consider other measures, such as changing BSA reporting thresholds. The new statement appears to be an effort by the agencies to resolve this resource tension by favoring innovation. It complements another recent guidance document from the same agencies encouraging smaller banks to share compliance resources where possible.

Practical Considerations


A number of new products and services offer real opportunities for banks to improve their transaction monitoring and other AML processes, resulting in stronger programs and reduced cost. However, banks should ensure that pilot projects and other innovations do not compromise their ability to effectively operate their current BSA/AML compliance programs. One way this can happen is migrating from previous methods to new technologies before the latter have been properly tested. For example, money transmitter MoneyGram International recently was required to pay an additional $125 million penalty, and had its deferred prosecution agreement extended, for AML program failures that occurred after it transitioned to a new fraud interdiction system that turned out to be ineffective. Another way this can happen is if the resources needed to administer a pilot project take away from resources needed to operate existing aspects of an AML program. The agencies have made clear that while they will not necessarily subject any failed pilot programs to supervisory criticism, they will continue to scrutinize banks’ current processes for any deficiencies, and expect them to remain compliant while testing new methods.

On November 15, 2018, FinCEN issued revised Geographic Targeting Orders (GTOs), once more expanding its scrutiny of “all-cash” purchases (i.e., those without bank loans or other external financing) in the luxury residential real estate market. FinCEN broadened the geographic scope of the orders, lowered the purchase amount threshold for each covered area, and added purchases that involve virtual currencies to the mandatory reporting list. Along with the GTOs, FinCEN also released frequently asked questions to clarify, among other things, the methods of payment covered and requirements for verification of beneficial ownership information.

The New GTOs

The new GTOs apply to title insurance companies, and any of their subsidiaries and agents, engaging in a “Covered Transaction.” A Covered Transaction is one in which a legal entity purchases residential real property:

  • In the amount of $300,000 or more.
  • Without a bank loan or other similar form of external financing.
  • Using in part currency or a cashier’s check, a certified check, a traveler’s check, a personal check, a business check, a money order in any form, a funds transfer, or virtual currency.
  • In the following covered areas:
    • The Texas counties of Bexar, Tarrant, or Dallas.
    • The Florida counties of Miami-Dade, Broward, or Palm Beach.
    • The Boroughs of Brooklyn, Queens, Bronx, Staten Island, or Manhattan in New York City.
    • The California counties of San Diego, Los Angeles, San Francisco, San Mateo or Santa Clara.
    • The city and county of Honolulu in Hawaii.
    • The Nevada county of Clark.
    • The Washington county of King.
    • The Massachusetts counties of Suffolk or Middlesex.
    • The Illinois county of Cook.

The new, uniform $300,000 reporting threshold is significantly lower than the thresholds in previous GTOs and also eliminates a previous practice of varying the thresholds by covered location.

Insurance companies that engage in the above listed activities must report the Covered Transaction to FinCEN by filing a FinCEN Currency Transaction Report. The report must be filed within 30 days of the closing of the Covered Transaction through the Bank Secrecy Act (BSA) E-Filing system. The insurance company must provide certain information in its report, such as information about the identity of the individual responsible for representing the Legal Entity and information about the identity of the Beneficial Owner(s) of the Legal Entity. A Beneficial Owner is defined for the purpose of these reports as an individual “who, directly or indirectly, owns 25 percent or more of the equity interests of the Legal Entity purchasing real property in the Covered Transaction.” Once the Beneficial Owner has been identified, the insurance company must obtain and record a copy of the Beneficial Owner’s driver’s license, passport, or other similar identifying documentation. The GTOs also require the insurance company to retain all records relating to compliance with the order for five years from the last day that the order is effective. These records must be stored in a reasonably accessible manner and must be made available to FinCEN upon request. This order is effective beginning November 17, 2018 and continues until May 15, 2019.

Along with the new orders, FinCEN also issued new frequently asked questions (FAQs). These clarify for the first time that, in identifying beneficial owners, a title insurance company may reasonably rely on information provided by third parties involved in the transaction.

The Likelihood of Rulemaking

In the past, FinCEN has hinted that the information collected through the GTOs could lead to the creation of regulations in this sector. Most recently, in the press release accompanying the newest GTOs, FinCEN remarked that these GTOs will further assist in tracking illicit funds and inform its future regulatory efforts in this area. This time it seems that FinCEN could actually be moving forward with regulations. Earlier in November, FinCEN announced through the Office of Management and Budget that it will issue an Advance Notice of Proposed Rule Making (ANPRM) “soliciting information regarding various businesses and professions, including real estate brokers that could be covered by the BSA as persons involved in real estate closings and settlements.” FinCEN previously considered regulation of “persons involved in real estate closings and settlements” in a 2003 ANPRM, but never issued a final rule.  FinCEN’s repeated extension and expansion of its GTOs suggests it may be collecting the data to support another try at regulations for such persons.

Practical Considerations

FinCEN’s clarification that title insurers may reasonably rely on the representations of third parties about who their beneficial owners are is a helpful limitation on the risk title insurers face in complying with their obligations. They still must ensure though, in order for reliance to be reasonable, that they are not aware of information that contradicts the assertions of who has the requisite beneficial ownership.

One practical consideration for banks that we have identified before is that FinCEN, in an August 22, 2017, advisory, has encouraged real estate brokers, escrow agents, title insurers, and other real estate professionals—to voluntarily file SARs to report any suspicious transactions relating to real estate. Banks and other BSA-regulated financial institutions should be aware of this when considering whether to file SARs for any part of such transactions that touches them, to avoid situations where such parties file SARs but the regulated financial institution fails to do so.



On October 3, 2018, the Financial Crimes Enforcement Network (FinCEN), the Board of Governors of the Federal Reserve System (FRB), the Federal Deposit Insurance Corporation (FDIC), the National Credit Union Administration (NCUA), and the Office of the Comptroller of the Currency (OCC) (collectively, “the Agencies”) issued a statement addressing instances in which banks can collaborate with each other and share resources to manage their Bank Secrecy Act (BSA) and anti-money laundering (AML) obligations more efficiently and effectively. This may involve pooling human, technology, or other resources to reduce costs, increase efficiency, and leverage specialized expertise. The statement indicates that such collaborative arrangements are generally are most suitable for community banks with simple operations and lower risk for money laundering and terrorist financing. The statement does not apply to collaborative arrangements for the purpose of sharing information under Section 314(b) of the USA PATRIOT Act.

The statement provides several non-exhaustive examples of how banks may collaborate:

Internal Controls

Two or more banks may share resources to conduct internal control functions such as: (1) reviewing, updating, and drafting BSA/AML policies and procedures; (2) reviewing and developing risk-based customer identification and account monitoring processes; and (3) tailoring monitoring systems and reports for the risks posed.

Independent Testing

Personnel at one bank may be used to conduct the BSA/AML independent test at another bank within a collaborative arrangement.

BSA/AML Training

A collaborative arrangement may allow for the hiring of a qualified instructor to conduct the BSA/AML training across multiple banks.

In certain instances it may not be appropriate to share resources under a collaborative arrangement. For instance, it may not be appropriate for banks to share a BSA officer due to the confidential nature of SARs filed and the potential impact on the ability of the BSA officer to effectively manage each bank’s daily BSA/AML compliance.  Further, banks should be careful when considering entering into arrangements due to potential privacy concerns, regulatory requirements specific to third parties, oversight issues, and more. Any arrangement should be documented with a contract and evaluated on a periodic basis. It is also important that banks tailor any agreements to meet their specific risk profile for money laundering and terrorist financing. Finally, each bank remains individually responsible for ensuring compliance with BSA requirements.

The statement appears to reflect an acknowledgement by regulators of the increasing amount of financial and human resources that banks are obligated to invest in AML compliance and the growing dichotomy in the ability of large versus smaller banks to maintain complex AML programs.

Practical Considerations

Banks considering such arrangements may wish to consider incorporating into these agreements other types of collaboration allowed by BSA rules. For example, although the statement does not govern sharing under Section 314(b) of the USA PATRIOT Act, such arrangements could be combined with section 314(b) relationships where appropriate to help banks improve the quality of their SAR reporting. Likewise, banks have the option under BSA rules to enter into agreements to rely on other banks to perform customer identification and collect beneficial ownership information on shared customers, which could be combined with the new collaborative arrangements.

Of course, banks should be careful when entering into such arrangements to ensure regulatory and other concerns are met. Any collaborative arrangement should be fully documented, reviewed periodically, and commensurate with the banks’ risk profiles.


Finally, the statement encourages banks to engage with their primary federal regulators when first considering collaborative arrangements to ensure that regulators understand the nature and extent of the proposed collaboration and have an opportunity to provide feedback.

On September 7, 2018, the Financial Crimes Enforcement Network (FinCEN) granted exceptive relief to “covered financial institutions”—banks, broker-dealers, mutual funds, and introducing brokers in commodities—from the requirement to identify and verify the identity of the beneficial owner(s) of their legal entity customers when those customers open a new account as a result of the following:

  • A rollover of a certificate of deposit (CD).
  • A renewal, modification, or extension of a loan (e.g., setting a later payoff date) that does not require underwriting review and approval.
  • A renewal, modification, or extension of a commercial line of credit or credit card account (e.g., a later payoff date is set) that does not require underwriting review and approval.
  • A renewal of a safe deposit box rental.

This exceptive relief applies only to the rollover, renewal, modification, or extension of any of these types of accounts on or after May 11, 2018 (the date on which covered financial institutions became obligated to collect and verify beneficial ownership information), and does not apply to the initial opening of such accounts. The exceptive relief does not affect the other obligations that covered financial institutions have under the Bank Secrecy Act (BSA) and its implementing regulations with respect to such accounts. This includes, in particular, the obligation that covered financial institutions have to understand the “nature and purpose” of customer relationships, and to “conduct ongoing monitoring to identify and report suspicious transactions and, on a risk basis, to maintain and update customer information.”

For more information, please see Crowell’s Client Alert.




On April 19, Crowell & Moring’s International Trade Attorneys hosted a webinar on “Trade in 2018 – What’s Ahead?”

Please click here to register and view the webinar on demand.


From the Section 232 national security tariffs on steel and aluminum imports to the ongoing NAFTA re-negotiation, the Trump administration is seeking to implement significant changes in international trade policy and enforcement. Economic sanctions on Russia continue to expand, the future is far from clear regarding Iran, and perhaps North Korea is coming into focus. A new Asia trade agreement without the United States, and a bumpy road ahead for Brexit all make for uncertainty and the need for enhanced trade risk management. Join us as we identify the international trade risks and opportunities likely to continue and grow in 2018.

Our Crowell & Moring team discussed predictions for the remainder of the year, with cross-border insights from our practitioners in the U.S., London, and Brussels. Topics included likely trends and issues in the U.S. and EU including:

  • Trade policy developments: Section 232, NAFTA renegotiation, and trade remedies
  • Sanctions in Year Two of the Trump Administration: Russia, Iran, North Korea, and beyond
  • Anti-money laundering (AML) and beneficial ownership
  • Supply chain risk management: blockchain, forced labor, the U.K. Modern Slavery Act, and GDPR
  • Europe: Brexit, the EU’s 4th AML Directive, and the EU/U.K. AML enforcement
  • CFIUS: how significant is the new legislation?
  • Export controls: Wither reform?
  • Import and customs

Venezuela has frequently been in the news lately, not only because of domestic politics, but also because of sanctions and bribery enforcement actions brought by U.S. authorities. In this podcast, Crowell & Moring’s Cari Stinebower, Dalal Hasan, Eduardo Mathison, and Mariana Pendás provide an overview of recent political and enforcement developments in Venezuela and explain what U.S. companies need to know about how these developments could impact business and trade ties with Venezuela.

Discussed in this 23-minute podcast:

  • An overview of the political situation in Venezuela.
  • Implications of U.S. and EU current sanctions targeting Venezuela and the potential for new sanctions.
  • FinCEN guidance on identifying corruption and money laundering red flags from Venezuela transactions.
  • Legal protections and International Dispute Resolution options for companies provided in Bilateral Investment Treaties (BITs) signed by Venezuela.
  • Takeaways for companies with business ties to Venezuela.

Click below to listen via the embedded player or access from the link:

On February 15, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN), in coordination with the Office of the Comptroller of the Currency (OCC), and the U.S. Department of Justice (DOJ), announced the assessment of a $185 million civil money penalty against U.S. Bank for willful violations of several provisions of the Bank Secrecy Act (BSA).

According to FinCEN’s press release, since 2011, U.S. Bank willfully violated the BSA’s program and reporting requirements by failing to establish and implement an adequate anti-money laundering program (AML), failing to report suspicious activity, and failing to adequately report currency transactions.

Banks are required to conduct risk-based monitoring to sift through transactions and to alert staff to potentially suspicious activity. Instead of this, U.S. Bank:

  • Capped the number of alerts its automated transaction monitoring system would generate to identify only a predetermined number of transactions for further investigation, without regard for the legitimate alerts that would be lost due to the cap.
  • Systemically and continually devoted an inadequate amount of resources to its AML program.
    • Internal testing by U.S. Bank showed that alert capping caused it to fail to investigate and report thousands of suspicious transactions.
    • It also allowed, and failed to monitor, non-customers conducting millions of dollars of risky currency transfers at its branches through a large money transmitter.
    • In addition, the bank filed over 5,000 Currency Transaction Reports (CTRs) with incomplete or inaccurate information, impeding law enforcement’s ability to identify and track potentially unlawful behavior.

U.S. Bank also had an inadequate process to handle high-risk customers. As a result:

  • Customers whom the bank identified or should have identified as high-risk were free to conduct transactions through the bank, with little or no bank oversight.
  • By not having an adequate process in place to address high-risk customers, U.S. Bank failed to appropriately analyze or report the illicit financial risks of its customer base.

FinCEN noted these failures precluded the bank from addressing the risks that such customers posed, which included not filing timely suspicious activity reports (SAR) used by law enforcement investigators to recognize and to pursue financial criminals.

On February 13, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) issued a finding pursuant to Section 311 of the USA PATRIOT Act identifying ABLV Bank of Latvia as a “primary money laundering concern.” FinCEN also issued a notice of proposed rulemaking (NPRM) under that section which, if adopted, would prohibit financial institutions from opening or maintaining a correspondent account in the United States for, or on behalf of, ABLV. In practice, financial institutions (both U.S. and non-U.S. headquartered) often do not wait for such a rule to be finalized but instead move immediately to close out banking relationships with the designated foreign financial institution as soon as the finding and NPRM are announced.

Under Section 311, if FinCEN’s Director finds that a foreign financial institution qualifies as a “primary money laundering concern,” they may propose a rule that would impose one or more of five different “special measures” against it. The most serious special measure, and the one typically imposed, is the fifth, which prohibits U.S. banks from maintaining correspondent relationships with the named foreign financial institution. Proposed rules to impose special measures are made available for public comment and become effective once the rule is finalized.

FinCEN is proposing this action based on its finding set out in the NPRM that ABLV is a foreign bank of primary money laundering concern. In particular, the FinCEN NPRM reports that ABLV has institutionalized money laundering as a business practice and has been involved in the provision of banking services to entities designated by the United Nations – including North Korean entities.  FinCEN also found that ABLV has assisted North Korea in the procurement or export of ballistic missiles.

It should be noted that the last two instances of FinCEN’s use of its Section 311 authority were ultimately resolved in FinCEN’s favor.

  • On May 23, 2017, the United States Court of Appeals for the District of Columbia affirmed the dismissal of a challenge to the U.S. Treasury’s use of Section 311 of the USA PATRIOT Act against Andorran bank Banca Privada d’Andorra (BPA) by the bank’s majority shareholders. Please click here for Crowell’s Client Alert on the BPA case.
  • In April of 2017, the U.S. District Court for the District of Columbia upheld the Treasury Department’s use of Section 311 of the USA PATRIOT Act to impose “special measures” with respect to Tanzanian Bank FBME, Ltd. Please click here for Crowell’s Client Alert on the FBME case.

Written comments on the NPRM may be submitted within 60 days of publication.


Relying on new statutory authority contained in the sanctions legislation recently signed by President Trump, FinCEN announced on August 22 that it would expand the scope of its Geographic Targeting Orders (“GTOs”) on luxury residential real estate purchases to now cover transactions involving wire transfers.  FinCEN also expanded the geographic scope of its GTOs to include a seventh major metropolitan area, Honolulu, Hawaii.  FinCEN also has released new frequently asked questions, and new guidance that increasingly suggests that FinCEN is likely to issue new rules in the future that may impose anti-money laundering requirements on real estate brokers, escrow agents, title insurers, and other real estate professionals.

Earlier GTOs

The new orders represent a significant increase in FinCEN’s efforts in this area.  Starting in January 2016, FinCEN began to issue GTOs to require U.S. title insurance companies to, among other things, identify and report beneficial ownership information on legal entity purchasers making all-cash purchases of luxury residential real estate.  The first GTO covered only two markets—Manhattan and Miami-Dade—and was for only a six-month duration that began in March 2016.  After seeing substantial indicators of money laundering and other criminal activity from that initial trial, FinCEN expanded the order to cover all five boroughs of New York City; Miami-Dade County and two counties immediately north; Los Angeles County; the counties covering the San Francisco area; San Diego County; and the county that includes San Antonio, Texas.  FinCEN has continued to renew the requirement through September 21, 2017.  FinCEN has said that more than 30% of the transactions reported in response to the orders are the subject of independent suspicious activity reports (“SARs”) filed by financial institutions on potential criminal activity.

The New GTOs, as Expanded by CAATSA

The newly announced GTOs require title insurance companies involved in “Covered Transactions” to collect and report to FinCEN information on the identities of the purchaser, the individual primarily responsible for representing the purchaser, and the beneficial owners of the purchaser (defined as each natural person who, directly or indirectly, owns 25% or more of that legal entity).  “Covered Transactions” are defined as those in which a legal entity purchases residential real property at a price that meets or exceeds the threshold set for each of the geographic areas covered by the order (e.g., $3 million for the borough of Manhattan, $1 million for Miami-Dade and surrounding counties), provided that the purchase is made without a bank loan or similar form of external financing and that it is made, at least in part, using currency or a cashier’s check, a certified check, a traveler’s check, a money order in any form, or a funds transfer (i.e.,a wire transfer).  The new GTOs will run from September 22, 2017 to March 20, 2018.

The expansion of reporting requirements to include transactions involving wire transfers was made possible by new language in Section 275 of the “Countering America’s Adversaries Through Sanctions Act” (“CAATSA”), the sanctions legislation concerning Russia, Iran, and North Korea signed into law on August 2, 2017.  Section 275 of CAATSA amended the GTO provisions of the Bank Secrecy Act (“BSA”), which previously allowed FinCEN to impose temporary recordkeeping and reporting requirements with respect to transactions in “United States coins or currency” or “monetary instruments,” to encompass transactions in “funds,” thereby allowing FinCEN to demand information on wire transfers and addressing what some had viewed as a loophole in earlier real estate GTOs.

The Advisory, and the Likelihood of New Rulemaking

In its related advisory, FinCEN notes that it has authority under the BSA to regulate “persons involved in real estate closings and settlements” as “financial institutions,” and suggests that this term “may include real estate brokers, escrow agents, title insurers, and other real estate professionals.”  While FinCEN notes that it “currently has exempted” such persons from the broader AML obligations that apply to regulated financial institutions, including the requirement to report suspicious activity, it has taken the unusual step of encouraging these unregulated parties to file voluntary SARs, and has clarified its view that they are protected by a safe harbor from liability in the BSA for doing so.  FinCEN provides red flags of potentially suspicious activity to aid such persons in doing so, which also may be useful to regulated financial institutions.  FinCEN’s repeated references to “current” conditions, its unusual step of encouraging voluntary SAR reporting by parties not subject to AML program requirements, and its repeated expansions of the real estate GTOs and announcements of strong indications of criminal activity in this area all suggest an increased likelihood that FinCEN is considering a rulemaking in this area.  Its suggested definition of “persons involved in real estate settlements and closings” provides further indication that FinCEN is considering what a rule might look like, and provides a window into who might be covered by one.  This builds on previous statements by the agency that these GTOs are “informing future regulatory approaches” to this issue and will help the agency to “determine [its] future regulatory course.”

Meanwhile, section 243 of CAATSA specifically references FinCEN’s real estate GTOs in the context of Russian money laundering, requiring Treasury to produce an annual report to Congress describing interagency efforts to combat Russian illicit finance, including a summary of efforts by Treasury to “[e]xpand the number of real estate geographic targeting orders or other regulatory actions, as appropriate, to degrade illicit financial activity relating to the Russian Federation” in the United States.  The reporting requirement, as well as the new statutory authority relating to wire transfers, appears to indicate that Congress is actively encouraging FinCEN to continue to explore new ways to use its GTO authority in the future.

FinCEN also notes in the advisory that persons involved in real estate settlements and closings are not entirely unregulated.  Like any trade or business not subject to a separate “currency transaction report” (“CTR”) requirement, persons involved in closings and settlements must report transactions in currency and certain monetary instruments to FinCEN on a Form 8300.

The FAQs

The FAQs clarify that a reporting title insurer “may reasonably rely” on the beneficial ownership information provided to it by the purchaser.  This is a concept taken from BSA requirements on banks and other financial institutions to obtain and verify beneficial ownership information.  It means that, although title insurers normally may rely on a purchaser’s representation of who its beneficial owners are, in cases where the title insurer has information indicating that the beneficial ownership information provided by a purchaser may not be correct, it has an obligation to investigate further to determine whether the information is correct.

Separately, the FAQs confirm that a transaction must be reported under the GTOs where any part of the purchase price is paid using currency, a funds transfer, or the various types of monetary instruments described in the orders.

Practical Considerations

FinCEN notes in its FAQs that it “expects a Covered Business to implement procedures reasonably designed to ensure compliance with the terms of the GTOs, including reasonable due diligence to determine whether it (or its subsidiaries or agents) is involved in a Covered Transaction and to collect and report the required information.”  It also provides that covered businesses must keep all records relating to compliance with the GTOs for a period of five years.  Title insurers that receive the order should take these obligations seriously.  FinCEN previously has expressed its disapproval over reports of parties trying to evade reporting under previous real estate GTOs, and CAATSA also elevates the importance of the orders.  Both make enforcement of any violations of the GTOs more likely.

Separately, banks need to prepare for the fact that real estate professionals involved in closings and settlements may begin filing voluntary SARs on real estate transactions, some part of which may flow through the bank.  This is especially likely for real estate transactions that involve wire transfers.  Banks will want to avoid situations where real estate professionals are reporting suspicious activity that the banks are not, and may wish to step up their scrutiny of transactions potentially subject to the new orders.

On July 26, 2017, the Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) assessed a civil money penalty of more than $110 million against BTC-e, a Russian-headquarted, internet-based virtual currency exchanger, and a $12 million penalty against its Russian owner, Alexander Vinnik. On that same day, the Department of Justice announced a 21-count indictment against Vinnik for money laundering and the operation of an unlicensed money services business (MSB). Vinnik was arrested in Greece the day before. This is the second time FinCEN has pursued enforcement against a virtual currency provider. It also represents the second largest penalty FinCEN ever has levied against an MSB.

Virtual currencies, which entered into mainstream consciousness with the advent of Bitcoin and its progeny, do not have legal tender status in any jurisdictions. However, “convertible” virtual currencies have equivalent value in real currency or act as a substitute for real currency, while often allowing users a greater degree of anonymity than real currency. BTC-e exchanged U.S. dollars, Russian Rubles, and Euros for virtual currencies Bitcoin, Litecoin, Namecoin, Novacoin, Peercoin, Ethereum, and Dash.

FinCEN has authority under the Bank Secrecy Act (BSA) to regulate MSBs, including money transmitters. In March 2013, FinCEN issued interpretative guidance identifying “exchangers” of virtual currency – defined as persons engaged as a business in the exchange of virtual currency for real currency, funds or other virtual currency – as money transmitters subject to regulation as MSBs under the BSA. The assessment against BTC-e alleges failure to register with FinCEN as an MSB as well as gross failures to maintain appropriate anti-money laundering (AML) controls and to report suspicious transactions as required by the BSA.

FinCEN’s previous enforcement action was for $700,000 for similar violations against popular virtual currency provider Ripple Labs, in 2015. The substantial difference in penalties between the two may be attributable in part to the facts that: (1) Ripple’s penalty was a negotiated settlement, as part of broader non-prosecution agreement with DOJ, whereas the assessment against BTC-e is nonconsensual; (2) BTC-e customers allegedly openly discussed their use of the exchanger to facilitate the sale of drugs and other unlawful activity without objection or further diligence from BTC-e; (3) BTC-e’s customer base allegedly consisted largely of “criminals who desired to conceal proceeds from crimes such as ransomware, fraud, identity theft, tax refund fraud schemes, public corruption, and drug trafficking”; and (4) BTC-e allegedly failed to demand or verify even basic identifying information for its customers and allowed the use of tools, such as bitcoin “mixers,” that obscured the identity of transacting parties.

Although not technically a penalty action, in June 2013 FinCEN also used Section 311 of the USA PATRIOT Act to identify another foreign virtual currency provider closely linked to criminal activity, Liberty Reserve S.A., as a ‘primary money laundering concern’ under Section 311 of the USA PATRIOT Act, and to propose special measures that would have cut off the company’s access to U.S. correspondent banking, once again in coordination with arrests and prosecution by DOJ.

FinCEN clarified by rule in 2011 that MSBs conducting business wholly or in substantial part in the United States are subject to regulation under the BSA for such activities, even if the MSBs have no physical presence there. FinCEN’s assessment against BTC-e appears to represent the first time FinCEN has taken action under this guidance against a foreign MSB with no physical presence in the U.S.

Practical Considerations

These actions, along with FinCEN’s 2013 guidance, and numerous administrative rulings since then about whether various virtual currency models qualify as MSB activity, offer several lessons. First, FinCEN appears determined to bring “legitimate” virtual currency providers under its regulation while taking strong steps to punish providers that wilfully allow the use of their systems to facilitate illegal activity, including through measures that preserve the anonymity of transacting parties. Second, FinCEN is willing to target foreign virtual currency businesses that lack any physical presence in the U.S., so long as they do substantial business there. This may occur either through civil enforcement actions or through the use of other tools such as Section 311. Third, FinCEN’s enforcement actions and various administrative rulings since its 2013 guidance suggest that determining whether a virtual currency activity is subject to regulation by FinCEN can be difficult. For example, FinCEN has issued rulings clarifying that a party renting computer systems to mine virtual currency would not be a money transmitter, but that a party that proposed to accept credit card payments on behalf of merchants and then to pay the merchants in virtual currency would be. For all of these reasons, U.S. and foreign entities considering providing virtual currency-related services should consult available FinCEN guidance and consider carefully whether their business models may qualify as MSB activity. They should use counsel as appropriate to assist them in navigating this emerging area of the law, and should consider seeking an administrative ruling from FinCEN in close cases.