2018 and 2019

As we head into 2019, here is a summary of 2018 in numbers.

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We welcomed James and John-Paul into the FINTRAIL family.

John-Paul will be leading the FINTRAIL and FFE communities so that Fintechs can collaborate on best practices in financial crime risk management.

James joins us to provide industry expertise all of our projects across a wide range of subjects and specialisms.

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We launched the FFE in the USA

As the FFE continues to grow and support its members in the UK and the Netherlands, we launched the FFE in the USA where we will be connecting the community to support the specific needs of American Fintechs.

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We held our first FFE conference in London

Over 100 representatives from across the Fintech community spent a day discussing and sharing ideas on the theme of...
 

‘Disruptive Perspectives on Financial Crime’ 

Which was a huge success with over 100 Fintech experts meeting for a day of learning, sharing and networking.

Fintrail’s Gemma Rogers is Fighting Financial Crime for Fintech’s Sake

Fighting financial crime is TFT’s Wonder Woman this month, Gemma Rogers, CEO FINTRAIL. She speaks to Zoya Malik about using regulation in an innovative way to protect fintech startups from financial crime by looking at their risk appetites and implementing control measures to stay the course.

(Gemma Rogers, CEO FINTRAIL)

ZM: What is FINTRAIL’s objective?

GR: FINTRAIL’s objective is to work with our clients across the Fintech sector to ensure they meet regulatory expectations and can effectively manage financial crime risks. We do this by helping clients understand the financial crime and compliance risks they may face and then work with them to deploy proportionate and effective controls. I believe fintechs have an important role in society and present huge opportunities, but with that opportunity comes risk that illicit and bad actors may take advantage of the new technologies and products to further crime – we work with our clients to stop that from happening. fintechs and challenger banks are unencumbered by legacy systems, data and processes, so can have an advantage over mainstream banks, making it a really exciting area to work in for passionate anti-financial crime professionals.

ZM: How are you advising fintech clients?

GR: We are a consultancy offering expertise on anti-financial crime compliance controls to fintech companies. Our approach with our clients is based on four pillars, Build, Scale, Assure and Solve. In terms of Build we look at what financial crime risks a company may face and ensure they have the right controls to manage them. In terms of Scale, we look at how new products or expansion plans may impact a client and also how controls can and should be scaled as they grow, providing additional capacity and support where and when our clients need it. With reference to Assure, this pertains to more mature fintechs where they require a 3rd party such as ourselves to test their systems and controls and determine that procedures align with regulatory compliance. In terms of Solve, we may come in where a firm has had a bad audit report or may have incidents of internal fraud. We help investigate these issues and advise on how to prevent them recurring in the future.

ZM: What is critical for fintechs in terms of setting up crime and fraud prevention controls?

GR: So, one of the main elements we focus on with our clients is the risk assessment: what this entails is a fintech truly understanding what specific financial crime risks they are exposed to.  What they are then able to do is focus the controls and preventative measures they apply on the risks that are most significant or where they have most exposure. This enables the fintechs to take a proportionate, risk-based but yet customer-friendly approach to how they fight financial crime, which can evolve as they grow their product offerings and business models.  

We also think it is vital that the industry benefits from collective learning and works together to fight back against the financial criminals. That is why we set up the FinTech Fincrime Exchange (FFE), a free members’ forum where we discuss best practices for fintechs, as well as the various permutations, or typologies, of what exactly financial crime can look like. Sharing information of this sort also strengthens the Fintech community’s stance against financial crime, ensuring that this sector plays its part in the global fight against financial crime, something that we are really passionate about at FINTRAIL.  

ZM: How are you advising clients on crypto assets crime prevention?

GR: We are really excited to be working in the cryptocurrency space.  There is a lot written about cryptocurrencies and their utility in financial crime schemes, and while there are risks, there are effective ways to mitigate these, just as there are in other asset classes.  When it comes into force, the Fifth Anti-Money Laundering Directive (5AMLD) will bring EU crypto exchanges and custodial wallets under the scope of ‘obliged entities’ for AML purposes. I believe this, and other recent regulatory developments is a really encouraging step forward, bringing crypto-assets into the mainstream and that the (hopefully proportionate) regulation will drive wider adoption and increase trust across all parties. Regulators want to see companies building controls according to their risk profile and this is precisely what they will want to see crypto related companies do. We are excited to be working with firms who are not only developing hugely innovative products and solutions but also taking a proactive approach to their financial crime risk mitigation strategies.

ZM: What will be new in terms of financial crime regulations and FINTRAIL’s business in 2019?

GR: We have recently expanded our business to the USA so we can offer fintech clients on both sides of the Atlantic access to specialist support, especially as companies are looking to expand and scale internationally. We will also be rolling out our services to Asia, in the early part of 2019.

Next year, Brexit will likely have an interesting impact on the Fintech sector across the UK and wider EU.  As such, we anticipate that FINTRAIL’s activities next year will include some advisory work for clients who are looking at how Brexit may impact their business and the changes in financial crime risk and compliance that may bring.

In the EU we are also excitedly awaiting implementation of the 5AMLD, which is in my view a welcome and positive sign that regulators are aiming to keep pace with the rapid technology developments that we are seeing among fintech and more traditional banking players.

Finally, we are going to be continuing the roll-out of the FFE network across the global fintech hubs in US, Asia and Europe to further expand the network of fintech financial crime professionals who are taking the fight to the criminals.

ZM: What has led your career to financial crime prevention?

GR: Having studied Russian and German at university, I started my career in national security in the UK, before moving into banking and realising that there was a huge crossover between the analytical skills required in government, and the skills needed to fight financial crime; when organisations are taking an ever more proactive stance against financial crime, and the need to be on the front foot to predict criminals’ behaviour is paramount having the ability to examine large amounts of data and set those findings into context is crucial.  Also, being able to understand the level of threat that criminals and crime types pose to different organisations is crucial when building out proportionate controls, and a prior career in national security was incredibly useful in that regard.

ZM: Do you think there is a lack of women entering this part of the industry? If so, why? What can bring them into the industry?

GR: I think the field is levelling out in anti-financial, largely because it’s such an interesting area to work in.  Plus the opportunities for progression are great, particularly in the Fintech sector where companies are taking their responsibilities around anti-financial crime seriously and as such the subject is getting a good amount of board and senior management attention.  Of course, more can always be done to encourage women to take up this career path: the Fintech Fincrime Exchange – a specialist industry forum for Fintechs to share and collaborate on financial crime issues – is proud to have signed up to the FinTech Parity Pledge to ensure we continue to have parity in our speakers; we already have an almost 50/50 split between male and female speakers, but we’re keen to do our bit to encourage this and promote diversity in FinTech.

ZM: What are your personal goals?

GR: Firstly, to ensure my colleagues and I at FINTRAIL are achieving our full potential whether that’s through having the right opportunities or through constructive, mutual feedback, and secondly that the Fintech community is equipped with the right skills and knowledge to fight financial crime effectively and efficiently. Tha was the goal behind the Fintech Fincrime Exchange Conference, that took place on 27 November 2018 where we aimed to provide some insightful content that disrupts traditional thinking around how to manage financial crime risks, and offered some practical skills-based sessions to add value to the ways in which Fintechs investigate and analyse financial crime issues.

ZM: Any concluding thoughts?

GR: Most importantly, we are passionate about fighting financial crime and the hugely negative impact it can have on society, customers and companies.  We like to think we can have a positive impact through our work with the inspirational teams and clients we work with in the fintech sector. We won’t solve financial crime overnight but if we all work together we can start to make a difference, building trust with customers, stakeholders and regulators at the same time.

Originally published here:

https://thefintechtimes.com/fintrails-gemma-rogers/

Do You Want the Bad News…?

The FFE and sponsor, the Regulatory DataCorp (RDC), have just released the FFE’s latest white paper on FinTechs’ use of Adverse Media Screening (AMS) .

In a survey of 39 members, the FFE found that over 75% currently use AMS as part of their compliance framework. Members used AMS throughout the customer life cycle and identified using the tool in support of investigations and SAR filing to be most valuable. Members found it most impactful when applied in a proportionate way, tailored to their specific financial crime risks.

The survey identified some issues, however. Members continue to struggle with the generation of high volumes of false positives generated by AMS, and were looking for more clarity from regulators on when to deploy AMS. Indeed, almost two-thirds of FFE members surveyed supported making the use of AMS a regulatory requirement, partly for clarity, but also to kickstart the RegTech sector into improving the accuracy of AMS solutions. While it is currently not an explicit  requirement for regulators in the UK, US, or EU, recent findings from the FCA have suggested that when well-executed, it can mitigate financial crime risks. Further guidance of this kind would clearly help FinTechs.

In the meantime, research and feedback from members suggest that the best approach is likely to be a proportionate one. To gain the most value-add from AMS, FinTechs should therefore employ it on a risk-based approach to gather the information most relevant to their risk profile, while making sure their solutions are regularly reviewed to ensure they operate at the highest level. If used judiciously, bad news can be good news for FinTechs.

To download the full paper, click here.

FinTechs to law enforcement: Let’s be partners, not adversaries

As the FinTech industry continues to grow in the United States, so do the opportunities for criminals to exploit systems meant to foster innovation.

With that in mind, a trade group in the United Kingdom called the FinTech FinCrime Exchange has expanded here to promote collaboration between financial entrepreneurs and law enforcement officials. Their goal is to develop best practices in risk management that would minimize the use of financial technology to support illegal activities.

“When we heard what was going on in the U.K. and the Netherlands, we thought there was tremendous opportunity to really build on that in the U.S.” said Julie Myers Wood, the CEO of Guidepost Solutions and a co-founder of FINTRAIL Solutions.

FINTRAIL, a financial crime consultancy company, helped to create the trade group in 2017. The organization boasts 80-plus members in the U.K. and the Netherlands. The digital-only banks Monzo and Revolut and the payments software developer Stripe are some of the more recognizable companies participating in the group.

With U.S.-based FinTechs facing the same challenges as their counterparts overseas, the exchange said it was natural to expand to America. It held a kickoff event Thursday in New York, which will serve as its U.S. central hub. Robert Evans, FINTRAIL’s CEO and co-founder, said the organization will create a chapter in San Francisco early next year, and then add outposts in emerging FinTech hubs such as Chicago. The organization also wants to establish chapters throughout Asia and Europe.

“Over time, what we want to do is create a global network of FinTech compliance professionals to fight financial crime,” he said.

(From L-R) Daniel Burnstein, senior managing director, Guidepost; Angel M. Melendez, special agent in charge, Homeland Security Investigations at the U.S. Department of Homeland Security; Scott Rembrandt, acting deputy assistant secretary for strategic policy, Office of Terrorist Financing and Financial Crimes U.S. at the Department of the Treasury; and Julie Myers Wood, Guidepost Solutions CEO and Fintrail Solutions co-founder.

One pillar of the organization’s plan is to establish better lines of communication between FinTechs and state and federal authorities.

Representatives from the U.S. Department of the Treasury and the U.S. Department of Homeland Security attended the event Thursday as the trade group hosted panel discussions focused on criminal threats to the U.S. FinTech industry.

“It’s important to have that trust and collaboration between regulators and startups,” Angel Melendez, special agent in charge of Homeland Security Investigations at the U.S. Department of Homeland Security, said during a panel discussion.

“We’re really out there to find the worst of the worst. We’re not here to disrupt the financial sector. We’re here to protect it,” he said.

Some government officials still have misconceptions about how FinTechs operate, Wood said before the event. She mentioned Silk Road, the now defunct online black market where bitcoin was used to purchase illegal drugs and firearms. Its notoriety has led to heightened scrutiny of cryptocurrency related FinTechs, she said.

“I think for some law enforcement, that’s what stuck in their head,” Wood said about Silk Road. “Part of our job is to convince regulators to look beyond that.”

On the other side, Wood said FinTechs need to understand how law enforcement authorities think about their businesses. “What am I going to do so that I don’t run into a roadblock that causes my business to shut down?” she said.

When Wood asked Melendez which areas Homeland Security monitors, he said the department “looks at every crime under the sun.” However, Melendez identified three areas Homeland Security is especially interested in: child exploitation, human trafficking and the opioid epidemic.

Some of that activity is happening in New York. Criminals have used cryptocurrencies to exchange funds related to such crimes there, Melendez said.

“Those are the most nefarious of the crimes,” Melendez said. “Hopefully, this does stir something in your stomach. Innovation is important, but you have to be responsible with your innovation.”

Daniel Burstein, senior managing director for Guidepost, said the compliance offer at a FinTech company needs to act as an extension of law enforcement. “As a compliance officer, you’re in a law enforcement role,” he said. “You should consider yourself everyday as a partner of law enforcement.”

Burstein added that while no company will stop bad actors “100% of the time,” the appropriate compliance controls need to be in place to ensure any platform is safe and being used for the right reasons.

“If you want to know what keeps me up at night, it’s exactly these things,” he said.

Originally published here:

https://www.americanbanker.com/news/fintechs-to-law-enforcement-lets-be-partners-not-adversaries

Sextortion: The Underreported Predicate Offence

Cases of sextortion are on the rise; however, as this type of crime grows in prominence, its relation to financial crime remains under-explored.

In May 2018, the National Crime Agency warned that tens of thousands of Britons were being targeted by ‘sextortion’ gangs. Reported cases have increased three times since 2015, and in July 2018, reports of a new, related phishing scam began making their way into our newsfeeds.

Sextortion is not a legal term and is used to cover a broad range of criminal activities. Interpol offer one of the best definitions, classing it as ‘blackmail in which sexual information or images are used to extort favours and/or money from the victim.’

Despite growing awareness from both a law enforcement and potential victim perspective, little analysis has been done on the financial crime implications of sextortion, which are potentially significant.

To help shed light on the subject, we explore three models here--detailing how they operate and what money laundering red flags you should look for.

The Phishing Scam

Over the past couple months, law enforcement agencies from around the globe and across the UK have identified a new scam whereby perpetrators email victims alleging to have hacked into their webcam whilst they were watching pornographic content. The perpetrators request sums ranging from USD$200 to USD$8000 to be paid in Bitcoin and have allegedly made USD$500,000 in total off of the scam thus far. Other phishing scams linked to sextortion exist as well, meaning funds firms might have seen laundered  - and would normally attribute to classic phishing scams - could in fact potentially be proceeds from sextortion. The likelihood of this could increase with time as the success of recent sextortion-related phishing campaigns becomes publicised.

Financial Crime Implications

• Cryptocurrency payments-- payments relating to sextortion cases may be requested in cryptocurrencies, so efforts should be made to cluster and risk rate bitcoin addresses, and this information could be communicated with FinTechs whose customers deal in cryptocurrencies or who directly facilitate cryptocurrency exchanges and wallets.

• Recurring payments to the same beneficiary-- the initial one-time payment could become recurring (though the value of each payment could change). Moreover, the payer and payee may have no other obvious connection outside of these payments.

• New customers-- victims could be new to paying in cryptocurrency and may not use cryptocurrency exchanges outside of these transactions.

The Catfishing Scam

This type of scam is typically carried out through organised criminal efforts, where fake profiles of women are created and used to entice men into performing sexually compromising acts on camera that are then recorded and used as blackmail. Recent cases have seen such activity linked to Romanian crime groups and call centre-style establishments out of the Philippines. Some photos and videos used to create these women are assessed to originate from coerced activity.

Financial Crime Implications

• Payments from victims--these could come through as FPS payments, and, like with phishing scams, could to be larger amounts followed by recurring payments of varying amounts.

• Adverse media checks--some KYC details including contact information and residential address may be found through adverse media checks to be connected to alleged romance fraud, dating scams or catfishing.

• Organised activity--as these types of sextortion scams are often centrally organised, network analysis can be conducted on suspect accounts.

The Blackmail Trade

Blackmail trading can be done through organised criminal groups or more decentralised networks. This type of sextortion typically targets women, and overwhelmingly women under the age of 18. In some cases, children’s sites have deliberately been exploited to find potential victims. It begins similarly to catfishing, with the victim being encouraged into sexually compromising activity, which is then used as blackmail to extort further sexual activity. When the perpetrator grows bored of the victim, they will sell the blackmail material (and by extension, the victim) to a buyer who continues the activity.

Financial Crime Implications

• Perpetrator to Perpetrator payments--as the payments are for blackmail, amounts could be smaller sums (e.g., £50 to £200) that are one-off payments and may be done through P2P platforms as the parties may know each other. They could be less likely to recur.

• Payment references--check suspicious payments for references to sexual acts, children’s websites and the name of a woman in a payment between two men.

In all of these cases, unlike other scams, victims rarely ever report the abuse. The implications can be devastating and have been linked to suicide and non-virtual sexual violence. Even when victims do manage to escape, the fear remains. More effort is needed not just to help potential victims protect themselves, but also to crack down on the financial trail behind these activities. The latter - if addressed correctly - has significantly more chance of identifying rings and perpetrators than relying solely on victims reporting crimes, and is another area where public-private partnership could be used to powerful effect.

If you’d like to further discuss this type of crime or other serious predicate offences and how they are financed, don’t hesitate to get in touch.

PayThink The digital payment crime threat portends a fintech/regtech alliance

Digital payments remain vulnerable to abuse by financial criminals seeking to make fast payments and undetected payments through the financial system.

There are multiple ways in which digital payments can be used by those laundering money, committing fraud, or financing terrorism. What are some of the risks fintechs should be thinking about, and what are the ways to mitigate them?

Because financial crime risks, properly mitigated, are in fact business opportunities, fintechs that take this seriously can give themselves a competitive advantage over those that have not done so.

Here are some notable examples and typologies we have come across in our own work and research:

Transaction laundering. In transaction laundering, criminals set up an internet store that purports to sell legitimate goods but is in fact laundering funds or selling illicit goods. These fake stores are onboarded by unsuspecting merchant processor systems, which process the transactions in good faith. Recent research by EverCompliant, a cyberintelligence firm, suggests that transaction laundering for the online sales of products and services in the U.S. for all financial services (of which fintech is only a part) reaches over an estimated $200 billion a year, with $6 billion going on illicit goods.

Buyer/seller collusion. As these figures suggest, there is often no underlying trade taking place. In these instances, there is likely to be collusion between the “buyers” and “sellers.“

Authorized pushed payment fraud. This crime occurs when fraudsters mislead consumers or businesses through false documentation, or manipulation through social-engineering techniques, into sending a digital payment to an account that appears to be legitimate but is in fact controlled by the fraudster.

Synthetic identify fraud. In “traditional” identity fraud, the criminal steals the credentials of a real individual. In synthetic identity fraud, the criminal starts with some authentic stolen credentials. In the United States, these are often Social Security numbers, especially those from economically “dormant” individuals such as children and senior people, which are then synthesized with fake information on addresses, age, etc., to create a new identity. According to research published in May, synthetic identity fraud resulted in $820 million in credit card losses in 2017, up from $580 million in 2015, with further rises expected in the future.

Terrorist financing. Terrorism experts have suggested for some time that online stores could be used as fronts by terrorist groups, and the March 2018 conviction of a U.S. citizen, Mohamed Elshinawy, has provided an example of this. Elshinawy, a self-professed member of the Islamic State, was believed to have received more than $8,000 from Islamic State facilitators via PayPal, ostensibly for sales of printers through his eBay account. The funds were intended to support operations in the United States, including possible attacks.

These kinds of crimes raise two key financial crime risks for fintechs in the digital payments sector: genuinely knowing your customer (KYC) and identifying unusual patterns in transactions.

Regulation technology, or regtech, is an important means of addressing these issues. There are an increasing range and variety of sophisticated online/virtual document verification firms that can test document validity through a range of techniques, from visual analysis to verifying against publicly available information and "scraping" from social media. Other firms have focused on the second problem, developing transactional monitoring tools, some using machine learning, to seek to identify unusual patterns of transactions.

However, before turning to technology, any firm working in the fintech sector should undertake a customer risk assessment during onboarding. Such an assessment should use factors that are relevant to the customer type and business model, to ensure it assesses credible indicators of risk. An assessment also provides an invaluable future benchmark for whether account and client conduct can be considered "normal," and should be regularly refreshed as the relationship continues.

Moreover, fintech employees themselves need to understand what financial crime might look like "in the moment." Even if regtech tools can identify potential “alerts,” these need to be investigated internally before possibly filing a suspicious activity report. When it comes to customer due diligence and KYC, often simple in-house investigatory measures can help. For example, a Google search of the client’s payment details or static information, such as an address, might also appear on other sites for other, completely unrelated and possibly questionable businesses.

In terms of transactions, there are common red flags that digital payments fintechs should be aware, including:

Turnover mismatch. At the opening of an account, it is common to ask the client what kind of turnover is likely in the account. Substantial differences in the expected pattern of use are worthy of investigation.

Payments incommensurate with business. Accounts might receive funds that do not appear realistic in light of the goods supposedly being traded. For instance, an online bookstore is likely to receive payments well below the $100 mark, and anything above that level would be anomalous.

Possible payment “structuring.” Accounts might receive a large amount of similar-sized funds, possibly in, or close to, round figures. This might be indicative of the "structured" payments of illicit funds in smaller batches, to avoid suspicion.

High/low velocity of payments. Short periods of high-velocity payments, or alternatively long periods of account dormancy, or alternating periods of both, are potentially indicative of an account not being used for the trading of goods, which would be likely to show a more random pattern.

Frequent cross-border transactions. Numerous cross-border payments from different jurisdictions might also be of concern, especially when those jurisdictions, such as known tax havens, might be considered higher risk from a financial-crime perspective.

None of these individual indicators should be sufficient on its own to show an elevated risk. However, in increasing combination, they should be of concern to any digital payment provider. The key question that needs to be asked is whether this makes sense, and if it does not, act accordingly. Combining this information, with that gathered at onboarding and during the life cycle of the customer, is key to helping to establishing and sifting out the potentially unusual from the downright suspicious.

Originally published here:

https://www.paymentssource.com/opinion/the-digital-payment-crime-threat-portends-a-fintech-regtech-alliance

Regulators Are Catching Up With The Crypto Boom

As published in Forbes, September 27, 2018. Authored by Julie Myers Wood.

Say goodbye to the under-regulated era of cryptocurrency. While crypto trading on the more mainstream exchanges is fueling the market, it’s also bringing greater scrutiny from regulators, as shown by the recent report by the New York State Attorney General’s office (OAG) on crypto exchange abuse, The Financial Action Task Force (FATF) announcements about upcoming crypto standards, and warnings to investors. And as guidance emerges and enforcement actions increase, crypto exchanges will, slowly but surely, start to look a lot more like other regulated financial markets.  Just last month, the Financial Crimes Enforcement Network (FinCEN) announced that it now receives over 1,500 suspicious activity reports (SARS) on crypto a month now.

In the early years, crypto-trading occurred through a fragmented network of exchanges around the world, largely between anonymous parties. But it was the 2016-17 boom in Bitcoin, Ethereum, and Litecoin that really brought crypto trading to the attention of regulators.

As it stands, the current shifting regulatory landscape for cryptocurrencies in the U.S. is still very confusing. State and federal regulators are struggling to keep pace with the innovations in cryptocurrencies, and the speed to which trading has taken off.

An administrator or exchanger of cryptocurrency is a money services business (MSB).  MSBs are considered financial institutions under the Bank Secrecy Act. This, in turn, means that they fall under the FinCEN’s oversight. The Securities and Exchange Commission (SEC) considers some cryptocurrencies and Initial Coin Offerings (ICOs) as securities, and therefore subject to securities regulations. The U.S. Commodity Futures Trading Commission also views virtual currencies as commodities.  At the same time, the Financial Industry Regulatory Authority (FINRA)just recently filed its first enforcement action against an individual for marketing an unregistered cryptocurrency security.  And those are just the federal agencies—the New York State Department of Financial Services (DFS), by way of example, regulates virtual currency activities through its BitLicenses and trust company charters.  If that all sounds complicated, that’s because it is.

Shifting regulatory landscape

So, how should crypto exchanges navigate such a complex and shifting regulatory landscape?

Global crypto exchanges must develop and implement robust compliance programs covering a wide range of topics.  And yet, for just about any crypto exchange overseeing billions in assets, maintaining exhaustive compliance programs is both time-consuming and expensive.  Risk-based choices that must be made can be chancy in the absence of clear guidance and without a long history of regulatory interpretations and legal precedent.

Nonetheless, certain basic actions are clear.  This begins with creating and implementing basic Know-Your-Customer requirements. But exchanges also need to implement robust anti-money laundering (AML), fraud prevention, and sanctions screening controls. Crypto exchanges whose compliance programs fail to meet regulators’ expectations will face the risk of costly enforcement actions. Just last year, FinCEN announced a significant fine against the BTC-e exchange and the owner of the BTC-e for violating AML laws, while the U.S. Department of Justice later filed criminal charges against BTC-e’s owner.

In developing their financial crime program, exchanges should think creatively about how to effectively incorporate tools into compliance and operations. As business grows and the volume of transactions increases, it will be increasingly difficult to keep up with any alerts relating to customer transactions and performing sufficient checks with respect to onboarding new customers and monitoring existing customers.

Another key area that must be a focus is market manipulation.  Exchanges must create and implement a robust policy and corresponding framework designed to combat market manipulation.  Market manipulation can take many forms, including trader and bot activity to artificially inflate prices (as indicated by price momentum and volume), and the failure by some trade engines who do not properly control the placement of matching orders opposite buy/sell orders.

Cybersecurity is also an ongoing, and ever-changing challenge, in which failures can take a heavy toll. Just take a look at Mt. Gox, which now faces claims of over $1 billion in lost cryptocurrency, after its own bankruptcy. Crypto exchanges are still a high priority target for hackers. Hackers put a premium on personally identifiable information (PII), such as social security numbers, making the safeguarding of customer and transactional data pivotal. Assembling a cybersecurity team is an important factor in keeping your exchange compliant.  In addition to mitigating risk, a robust cybersecurity program may even be required by relevant regulations depending on where the exchange operations.  The NYS DFS has issued specific cybersecurity requirements for all entities it regulates—some of those requirements include risk assessments, designating a chief information security officer (CISO), and incident management plans.

Where we go from here

It can seem like government regulations move at a snail’s pace compared to the speed of innovation in cryptocurrencies. While regulators continue to work through existing and future regulations, and we await new global FATF standards, exchanges can consider participating in a self-regulatory organization (SRO), such as the newly formed Virtual Commodity Association.  There are many unanswered questions as exchanges grow, and the potential of SROs to help address issues and provide guidance is significant.  We have one such example already—in June of this year, the CFTC announced that it is simplifying certain obligations imposed on an SRO when carrying out financial surveillance program for futures commission merchants.

To grow business and be competitive, exchanges will have to put in place compliance programs that are not only compliant with applicable regulations but will also protect them from financial crimes that can cause irreparable reputational damage.  These compliance programs must be reliable and flexible, and constantly updated to meet the evolving requirements by federal agencies. Using robust, sophisticated tools that can automate transaction monitoring, customer screening, and certain facets of onboarding and transactions, along with setting up appropriate interfacing, will allow exchanges to devote appropriate compliance personnel and resources to the riskiest facets of the exchange and its customers.  Such programs will go a long way in reassuring both regulators and verified investors that crypto trading is a legitimate financial market and that their under-regulated days are in fact a thing of the past.

Cryptocurrencies: Getting Serious About Financial Crime Risk Management

Key Points

1. Global policymakers have set their sights on cryptocurrencies, signalling that tackling the related financial crime risks is a major security priority

2. With the adoption of the Fifth Money Laundering Directive (5AMLD), cryptocurrency exchanges and wallet providers across the EU will soon face direct regulatory scrutiny and must ensure that they have appropriate financial crime risk management frameworks in place

3. In countries such as the US, where crypto-related AML/CTF regulation has already been in place for some time, regulators have indicated that they will intensify scrutiny of crypto businesses

4. Banks and other financial institutions are also facing pressure from regulators to manage their exposure to cryptocurrencies and related risks

5. The foundations for implementing a successful risk-based approach to cryptocurrencies rests on several pillars: conducting thorough risk assessments; defining risk appetite; cultivating staff competency and subject matter expertise; developing robust governance arrangements; developing, deploying and testing bespoke tools; and collaborating with industry peers 

6. In this briefing, FINTRAIL explores how companies can successfully manage cryptocurrencies’ unique financial crime risks in an innovation-friendly manner

Introduction

The EU’s adoption of the Fifth Money Laundering Directive (5AMLD) in July 2018 marks an important moment for cryptocurrency businesses across Europe. By January 2020, EU member states must bring crypto exchanges and custodial wallet providers within the scope of their anti-money laundering and countering the financing of terrorism (AML/CFT) regulation. 

The so-called ‘Wild West’ environment for crypto businesses is coming to an end.

5AMLD will put the EU’s crypto industry on par with peers in the US, where the Financial Crime Enforcement Network (FinCEN) clarified in 2013 that crypto exchanges are subject to AML/CFT regulation. Many in the EU’s crypto industry have attempted to get ahead of the curve. 

Even prior to 5AMLD’s adoption, some crypto businesses across the EU had implemented AML/CFT policies and procedures, demonstrating their intention to be responsible actors. Europol has noted that, even absent formal regulation to date, many crypto exchanges across the EU, ‘aim to comply with AML requirements regarding customer due diligence and transaction monitoring . . . [and] many have shown themselves to be willing and capable of supporting [law enforcement] investigations.’  

5AMLD nonetheless marks a turning point. EU crypto exchanges and wallet providers can’t merely be compliant on paper or on a voluntary basis any longer. They will soon be expected to demonstrate to regulators that they are actively managing their financial crime risks in a proportionate and effective manner. Failure to do so could mean fines or other penalties for crypto businesses that fail to meet regulators’ expectations. 

In countries where crypto-related regulations are already in place, such as the US, signs point to a climate of intensifying regulatory scrutiny. In March of 2018, FinCEN issued guidance stating that the exchange of Initial Coin Offerings (ICOs) falls within its remit. In April 2018, New York’s Attorney General’s Office launched an inquiry into the accountability and transparency of crypto exchanges, requesting that thirteen major crypto exchanges disclose information about the nature of their compliance frameworks, including their AML/CFT programmes.

‘Treasury’s FinCEN team and our law enforcement partners will work with foreign counterparts across the globe to appropriately oversee virtual currency exchangers and administrators who attempt to subvert U.S. law and avoid complying with U.S. AML safeguards 1.’

- Acting FinCEN Director Jamal El-Hindi, July 2017 

It’s not only crypto exchanges that are coming under the microscope. Regulators are putting increasing pressure on all financial institutions to manage cryptocurrency risks. In June 2018, the UK’s Financial Conduct Authority (FCA) published a letter to firms in which it set out its expectation that banks and other financial institutions should evaluate and manage the crypto-related financial crime risks they face. 

Beyond the US and Europe, from Canada to Japan to Australia and beyond, regulators are taking a closer look at the nature of cryptocurrency risks and how the financial sector is managing them. The Financial Action Task Force (FATF) is currently reviewing the applicability of global AML/CFT standards to cryptocurrencies, demonstrating the renewed will of global policymakers to tackle the perceived risks. 

‘The global regulatory environment for virtual currencies/crypto-assets is changing rapidly. This may make it challenging to ensure a consistent global approach, which could increase risks. Given the highly mobile nature of virtual currencies/crypto-assets, there is a risk of regulatory arbitrage or flight to unregulated safe havens.’

- FATF Report to the G20 Finance Ministers and Central Bank Governors, July 2018 

In this environment, it may be tempting to find quick fixes and to address new risk management challenges with old compliance solutions. Unfortunately, the same old approaches won’t work. Cryptocurrencies present unique financial crime risk management challenges that warrant unique solutions. A thoughtful risk-based approach to cryptocurrencies requires thinking outside the box. 

In this briefing paper, we share our thoughts about how firms in the crypto industry and in the broader financial sector can meet the challenge. 

The Crypto Industry

Crypto businesses need to keep in mind that ‘compliance’ is not just about ticking boxes. 

Best practice in AML/CFT is about thoughtfully managing risk. A well-calibrated risk-based approach can allow a crypto exchange or wallet provider to establish a truly comprehensive financial crime risk management framework that protects the integrity of its business, reduces exposure to financial crime and mitigates regulatory risk. 

We’ve identified five key areas that can help a crypto business build a best-in-class risk management framework. 

#1 Assessing Risk

A well-designed risk based approach starts with a thorough financial crime risk assessment. For crypto businesses, a risk assessment that takes account of the unique features and challenges of crypto products and services is essential. What’s more, it is important to develop a risk assessment framework that is scalable and can be used to evaluate changes in risk exposure as a company grows.  

Current regulatory guidance, such as the UK’s Joint Money Laundering Steering Group (JMLSG), sets out factors to consider when undertaking a firm-wide risk assessment:

• Geography – Crypto businesses should assess risks related to where they are located and where they offer services. For example, is a crypto exchange registered in a jurisdiction with a strict regulatory environment, and how does this operating environment impact its risk profile? Is the platform accessible from jurisdictions subject to international sanctions? Is the service available in countries with high levels of terrorist financing?  

• Customers – A crypto business should also consider whether factors about its specific customer base could impact its overall risk profile. For example, does it have any customers who are politically exposed persons (PEPs)? If so, who are those PEPs and does their source of wealth present any red flags? Are customers who are nationals of countries associated with high levels of human trafficking creating accounts in large numbers, and if so, do those accounts present signs of unusual activity?

• Product – A crypto business needs to consider how any product features might impact its risk exposure. Does the product enable the rapid conversion of fiat currency to crypto in a way that might prove attractive to money launderers? Is the product vulnerable to high value money laundering, or do its features present a risk of lower-value money mule activity that can be pervasive but difficult to detect? 

• Delivery channel – A crypto business also needs to think carefully about the risks related to how customers access its product or platform. Is it only accessible online? Or does the product involve Bitcoin ATMs or other physical infrastructure that customers can use?

In addition to assessing these general risk categories, crypto businesses should think carefully about the money laundering and terrorist financing risks that their specific offerings present. For example, whether they provide an online exchange service, a crypto ATM network or crypto prepaid cards, crypto businesses will face unique money laundering typologies and criminal vulnerabilities that are highly specific to their business type. Recent cases suggest that criminals are becoming savvier in exploiting a diverse range of crypto-related products and services, seeking out platforms that allow them to engage in increasingly complex money laundering schemes. Developing bespoke risk management solutions requires understanding these typologies in detail. 

Crypto business should also assess the financial crime risks around the types of cryptocurrencies they provide. For example, privacy coins with high levels of anonymity such as Monero may present unique risks and challenges. It may prove challenging to monitor customer activity where these coins are present. Crypto exchanges that offer privacy coins to customers need to be aware of the resulting impact on their risk profile. 

It’s important to remember that a risk assessment process should be supported by a sound methodology that enables a company to understand the evolution of its risks over time. This should include:
• Developing a logical approach to measuring inherent and residual risks; 

• Ensuring risk assessment findings are thoroughly documented and presented clearly to senior management; and

• Having processes in place for updating the risk assessment, in whole or in part, when new business lines and products are launched, geographical expansion occurs or other trigger events arise. 

‘Risk management generally is a continuous process, carried out on a dynamic basis. A money laundering/terrorist financing risk assessment is not a one-time exercise. Firms must therefore ensure that their risk management process for managing money laundering and terrorist financing risks are kept under regular review.’ 

- JMLSG, Guidance for the UK Financial Sector, December 2017 

#2 Defining Risk Appetite

When a business understands its risks, it can decide which risks it finds acceptable, and those it finds too high. 

A financial crime risk appetite statement can allow a crypto business to scale and develop new products and services in a thoughtful manner that ensures commercial goals are achieved without taking on excessive risk. As the Financial Stability Board has indicated 2, a good risk appetite statement can achieve several goals, including:

• Setting quantitative measures that track exposure to key risks, enabling proactive mitigation of risks before they become unacceptably high;

• Establishing limits to risk taking so that staff have a clear understanding of unacceptable risks;  

• Defining staff members’ roles and responsibilities for mitigating risks; and

• Providing a baseline against which assurance functions can test that systems and controls are enabling the company to operate within its risk appetite. 

By clearly defining the levels of risk they are willing to assume, a company’s senior management can establish a clear ‘tone from the top’ and foster a strong company culture. Failure to do so can result in a lax risk management environment that leaves the company exposed to reputational and regulatory risk. 

‘A sound risk culture will provide an environment that is conducive to ensuring that emerging risks that will have material impact on an institution, and any risk-taking activities beyond the institution’s risk appetite, are recognised, escalated, and addressed in a timely manner.’

- Financial Stability Board, Principles for An Effective Risk Appetite Framework, November 2013 

#3 Building a Compliance Team and Governance Arrangements

A strong company culture on financial crime is only possible if supported by a competent and effective team of suitably qualified AML/CTF compliance professionals. 

‘One of the most important controls over the prevention and detection of money laundering is to have staff who are alert to the risks of money laundering/terrorist financing and well trained in the identification of unusual activities or transactions which may prove to be suspicious.’ 

- JMLSG, Guidance for the UK Financial Sector, December 2017 

Even the smallest crypto companies should ensure that they have adequately experienced staff who understand financial crime risks, regulatory requirements and appropriate control measures. To this end, it is important to make sure that staff have received appropriate training. As the UK’s JMLSG3  advises, training should include ensuring staff awareness of:

• The company’s risks, as identified in its financial crime risk assessment;

• The company’s financial crime policies, procedures, systems and controls;

• AML/CTF regulatory requirements applicable to the company, and the consequences of breeching those requirements; 

• The types of high risk customers the company encounters, and enhanced due diligence (EDD) measures that are in place to manage them; and

• Red flag indicators of suspicious activity specific to the company’s product and service offerings, and procedures for filing suspicious activity reports (SARs). 

Larger companies should think carefully about how to structure their compliance functions so that risks are managed appropriately, and to ensure that senior management can monitor those risks over time. Compliance teams should be suitably resourced and visible within the company. 

This may be accomplished, in part, by establishing financial crime risk committees that are comprised of senior risk and compliance staff and that review key management information to assess the effectiveness of controls and identify emerging risks. Robust governance arrangements can ensure that risk management functions are on the front foot against financial crime and are not merely reactive.  

#4 Choosing and Tuning Tools

To be effective, a financial crime compliance team must be more than just impressive-sounding titles. Compliance functions must develop and utilise effective AML/CTF policies and procedures whilst having access to systems and controls that are proportionate to the risks their business faces. 

Policies and procedures should be developed with the aim of mitigating a company’s risks as identified in its risks assessments. This could include, for example, having in place specific EDD measures for identifying customers’ source of wealth where less transparent products or services are used. 

Financial crime systems and controls – such as identification and verification tools, transaction monitoring systems and sanctions screening solutions – should be appropriately calibrated to ensure a firm can operate within its risk appetite. 

Bitcoin ‘track and trace’ forensic tools have also been developed and are already assisting many crypto industry participants in identifying and managing risks. 

These systems and controls should be subject to regular audit and testing to ensure they mitigate key risks and meet regulatory expectations.  As JMLSG notes4 , effective systems and controls are generally characterised by factors such as:

• Alignment with regulatory requirements and expectations; 

• Appropriate resourcing; and

• Competent staff operating the controls. 

Whether a company chooses to undertake internal or external audit, it needs to be able to demonstrate that systems and controls are compliant whilst also enabling it to manage its risks in practice.  

#5 Working with Partners

Strength is in numbers, and crypto businesses can bolster their defences against financial crime by sharing information with their industry peers. 

At FINTRAIL, we’ve co-founded the FinTech Financial Crime Exchange (FFE), a partnership of over 50 UK FinTech companies, including several of the UK’s leading cryptocurrency firms. 

Through the FFE, crypto and other FinTech companies can share information on financial crime typologies they encounter and best practices for prevention and deterrence. 

Proactive involvement in industry partnerships, self-regulatory organisations and other similar platforms can enable a company to stay on the front foot against financial crime. 

Out of Many, One? — The Future of U.S. FinTech Regulation

Not for the first time, the federal government and states are at odds over the future regulation of FinTech.

On July 31, 2018, the Office of the Comptroller of Currency (OCC) at the U.S. Department of the Treasury (DoT) announced it would begin accepting applications from FinTechs for special bank charters, which would allow them to operate nationally. But individual states and inter-state organizations are strongly opposed. The Conference of State Bank Supervisors (CSBS), which brought an unsuccessful lawsuit against the OCC last year to stop the charter being introduced, has declared that it is ‘a regulatory train wreck in the making.’

The irony is that both sides of the debate want greater consistency. The key difference is determining who should drive the change. As this battle continues, how can U.S. FinTechs approach this complex regulatory landscape, protect themselves and their customers from financial crime, and change potential risks into competitive advantages?

No Single Framework

Part of the difficulties FinTechs face while navigating the U.S. regulatory environment are not only the different layers of government — state and federal — but also the lack of one single type of FinTech. Digital payments firms, for instance, are seen as money service bureaus (MSBs) under the federal Banking Security Act (BSA) and have to register both with the Financial Crime Enforcement Network (FinCEN) at the DoT, as well as gain a state license. Cryptocurrency exchanges are also considered MSBs, because they transmit funds, but initial coin offerings (ICOs), where a new cryptocurrency is offered in return for investment in the startup, is considered a form of security and is subject to the Securities Act and Securities Exchange Act, regulated by the Securities and Exchange Commission (SEC). The table below provides a simplified view of financial crime risks, regulations, and the FinTech sectors that might be affected.

What Do Both Sides Want?

First, the states are keen to see licensing for FinTechs remain in their hands, and there have been collective moves to increase alignment and streamlining across the states for all forms of non-bank financial activity. CSBS’s ‘Vision 2020’ reinforces this with what it calls is “a series of initiatives…to modernize state regulation of non-banks, including financial technology firms.” The program aims to ensure that by 2020, there will be an integrated state licensing and supervisory system across all 50 states. This includes the redesign of Nationwide Multistate Licensing System (NMLS), the core technology platform used by state bank regulators, the introduction of a Fintech Industry Advisory Panel, harmonization of state supervision, and education programs to improve bank and non-bank interaction.

According to the recent DoT report, ‘Nonbank Financials, Fintech, and Innovation,’ the federal government wishes to see financial innovation continue, but within a more consistent regulatory framework. The report suggests a range of possibilities, such as state alignment through ‘model laws’, license harmonization, FinTech/Financial Service provider partnerships, as well as the OCC ‘special bank’ charter. Indeed, the OCC itself has said that the special charter is only one option, and it is conceivable that a hybrid approach might develop over time, through negotiation between the states and the federal government. All sides seem to want to get to the same destination, but have varying views about who should be in charge.

What does this mean for Financial Crime Risk?

From the perspective of identifying, managing and mitigating financial crime risks in the U.S. FinTech sector, there are plenty of positives in these developments. Variations in types of regulation between jurisdictions can create vulnerabilities in a system that can abet money launderers. Federal legislation apart, if one state has significantly less demanding requirements for company licensing than another, then it could become a portal through which criminal funds are most easily ‘placed’ in the financial system — stage one of the money laundering cycle. And from there, the funds can be ‘layered’ — sent through multiple accounts in the financial system (stage two) — before being ‘integrated’ into a seemingly legitimate account (stage three), quite possibly in a state with higher licensing requirements. If there is greater and more demanding standardization, and more consistent application of the standards, this should then help to reduce financial crime risk overall.

How should FinTechs respond?

However, it is important that FinTechs do not interpret this positive trend in the wrong way. Improved and consistent regulation can reduce some of the niches in which financial criminals can operate. However, it does not eliminate financial crime risk, because, as experience has shown, those who launder criminal funds, evade sanctions and tax, and finance terrorism, are amongst the most creative people in the world.

So rather than becoming caught up a traditional compliance ‘tick box’ culture, or following regulatory battles, FinTechs should focus first on the actual financial crime risks themselves. Regardless of the final outcome of the tug of war between the states and the federal government, FinTechs must consider how to manage their risks in this area, in the best interests of themselves and their clients. This isn’t just good for risk management and compliance — it is also good for business.

FinTech firms should consider a simple four step approach:

1. Undertake a financial crime risk assessment. This is essential to knowing your key vulnerabilities and then being able to measure your efforts to reduce them over time. This requires challenging assumptions, testing vulnerabilities, and working in detail to understand the precise extent and nature of money laundering and other risks to which it could be exposed.

2. Understand financial crime typologies. Make use of available typologies studies related to certain offences, to understand potential exposure and assess whether any unknown risks do in fact exist. Given the anonymous character of many transactions on online platforms, FinTechs should pay special attention to the risks from different types of fraud, such as synthetic identity fraud.

3. Tailored systems. Seek to build systems and processes that are specifically designed for the risks FinTechs are likely to face. For example, although all financial institutions are subject to U.S. sanctions laws, providers involved in cross-border transactions should give higher priority to screening for potential evasion. A risk focused approach is more likely to create a healthy and proactive compliance culture.

4. Create indicators and use data: FinTechs should leverage the skill they have in utilizing data to decipher indicators of specific money laundering risks. They should continue using these indicators and supporting data as key performance indicators on a regular and scheduled basis. This is invaluable for managing risk and makes the process of future conversations with auditors and regulators considerably easier.

Understanding and implementing this process is key to stopping financial crime in its tracks and helping transform risks into opportunities.

Why Swiss Plans To Relax AML Regs For FinTech May Do More Harm Than Good

At FINTRAIL we think the Swiss plans to relax Anti-Money Laundering (AML) rules for FinTech under a certain size may actually be a bad idea for the industry and cause those that take advantage longer term harm and complexity.

We fully recognise that for small and early stage companies, complying with AML and Anti-Financial Crime (AFC) requirements can feel burdensome however it comes with a couple of significant advantages. Firstly, embedding AFC at an early stage is not just about complying with regulations, it's about building a strong compliance culture from scratch: by creating a false pause in the need to do this frankly just makes the process harder when you do need to do it due to regulatory requirements. Secondly, by making people think about AFC from the start, they can build in controls, make product changes easily, and generally make AFC a contributing factor to a great customer experience. Removing the drivers to set up an AFC framework from the start will mean that companies start bolting-on controls, and - as we all know from the legacy institutions - that becomes supremely difficult.

At FINTRAIL we feel very privileged to work with dozens of FinTech companies who are at different stages of development and fall under a range of regulatory regimes: one advantage they all have over legacy institutions is that they are thinking about AML/AFC from day one. Is it hard to deal with regulations - yes, of course, but by building it into the very foundation of the company and product they end up in a much better position long-term. It is driving innovation and forcing people to think differently about AML/AFC, their customers and products, and embedding a strong AFC culture from the start that remains as agile as the product development itself. If you want to rapidly scale your business and have a genuinely effective AFC regime, bolting that on is not the way to do it.

Our view is that rather than removing the need to comply with AML regulations, regulators should be looking at how they can simplify the process of complying for those that are at an early stage of their disruptive journey. In our mind that is about providing far more education and support.  It would also give regulators the chance to simplify the language used in regulations to make them easier to understand and thereby implement, while not removing the spirit of what these companies need to become accustomed to dealing with as they scale.

Cryptocurrencies: Getting Serious About Financial Crime Risk Management

Key Points

 ·      Global policymakers have set their sights on cryptocurrencies, signalling that tackling the related financial crime risks is a major security priority

·      With the adoption of the Fifth Money Laundering Directive (5AMLD), cryptocurrency exchanges and wallet providers across the EU will soon face direct regulatory scrutiny and must ensure that they have appropriate financial crime risk management frameworks in place

·      In countries such as the US, where crypto-related AML/CTF regulation has already been in place for some time, regulators have indicated that they will intensify scrutiny of crypto businesses

·      Banks and other financial institutions are also facing pressure from regulators to manage their exposure to cryptocurrencies and related risks

·      The foundations for implementing a successful risk-based approach to cryptocurrencies rests on several pillars: conducting thorough risk assessments; defining risk appetite; cultivating staff competency and subject matter expertise; developing robust governance arrangements; developing, deploying and testing bespoke tools; and collaborating with industry peers

·      In this briefing, FINTRAIL explores how companies can successfully manage cryptocurrencies’ unique financial crime risks in an innovation-friendly manner

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Introduction

 The EU’s adoption of the Fifth Money Laundering Directive (5AMLD) in July 2018 marks an important moment for cryptocurrency businesses across Europe.

By January 2020, EU member states must bring crypto exchanges and custodial wallet providers within the scope of their anti-money laundering and countering the financing of terrorism (AML/CFT) regulation.

The so-called ‘Wild West’ environment for crypto businesses is coming to an end.

5AMLD will put the EU’s crypto industry on par with peers in the US, where the Financial Crime Enforcement Network (FinCEN) clarified in 2013 that crypto exchanges are subject to AML/CFT regulation.

Many in the EU’s crypto industry have attempted to get ahead of the curve.

Even prior to 5AMLD’s adoption, some crypto businesses across the EU had implemented AML/CFT policies and procedures, demonstrating their intention to be responsible actors. Europol has noted that, even absent formal regulation to date, many crypto exchanges across the EU, ‘aim to comply with AML requirements regarding customer due diligence and transaction monitoring . . . [and] many have shown themselves to be willing and capable of supporting [law enforcement] investigations.’[1] 

5AMLD nonetheless marks a turning point. EU crypto exchanges and wallet providers can’t merely be compliant on paper or on a voluntary basis any longer. They will soon be expected to demonstrate to regulators that they are actively managing their financial crime risks in a proportionate and effective manner. Failure to do so could mean fines or other penalties for crypto businesses that fail to meet regulators’ expectations.

In countries where crypto-related regulations are already in place, such as the US, signs point to a climate of intensifying regulatory scrutiny. In March of 2018, FinCEN issued guidance stating that the exchange of Initial Coin Offerings (ICOs) falls within its remit. In April 2018, New York’s Attorney General’s Office launched an inquiry into the accountability and transparency of crypto exchanges, requesting that thirteen major crypto exchanges disclose information about the nature of their compliance frameworks, including their AML/CFT programmes.

It’s not only crypto exchanges that are coming under the microscope. Regulators are putting increasing pressure on all financial institutions to manage cryptocurrency risks. In June 2018, the UK’s Financial Conduct Authority (FCA) published a letter to firms in which it set out its expectation that banks and other financial institutions should evaluate and manage the crypto-related financial crime risks they face.

Beyond the US and Europe, from Canada to Japan to Australia and beyond, regulators are taking a closer look at the nature of cryptocurrency risks and how the financial sector is managing them. The Financial Action Task Force (FATF) is currently reviewing the applicability of global AML/CFT standards to cryptocurrencies, demonstrating the renewed will of global policymakers to tackle the perceived risks. 

In this environment, it may be tempting to find quick fixes and to address new risk management challenges with old compliance solutions.

Unfortunately, the same old approaches won’t work.

Cryptocurrencies present unique financial crime risk management challenges that warrant unique solutions.

 A thoughtful risk-based approach to cryptocurrencies requires thinking outside the box.

In this briefing paper, we share our thoughts about how firms in the crypto industry and in the broader financial sector can meet the challenge.

---

The Crypto Industry 

Crypto businesses need to keep in mind that ‘compliance’ is not just about ticking boxes.

Best practice in AML/CFT is about thoughtfully managing risk.

 A well-calibrated risk-based approach can allow a crypto exchange or wallet provider to establish a truly comprehensive financial crime risk management framework that protects the integrity of its business, reduces exposure to financial crime and mitigates regulatory risk.

We’ve identified five key areas that can help a crypto business build a best-in-class risk management framework. 

#1 Assessing Risk

 A well-designed risk based approach starts with a thorough financial crime risk assessment.

For crypto businesses, a risk assessment that takes account of the unique features and challenges of crypto products and services is essential.

What’s more, it is important to develop a risk assessment framework that is scalable and can be used to evaluate changes in risk exposure as a company grows. 

Current regulatory guidance, such as the UK’s Joint Money Laundering Steering Group (JMLSG), sets out factors to consider when undertaking a firm-wide risk assessment:

·      Geography – Crypto businesses should assess risks related to where they are located and where they offer services. For example, is a crypto exchange registered in a jurisdiction with a strict regulatory environment, and how does this operating environment impact its risk profile? Is the platform accessible from jurisdictions subject to international sanctions? Is the service available in countries with high levels of terrorist financing? 

·      Customers – A crypto business should also consider whether factors about its specific customer base could impact its overall risk profile. For example, does it have any customers who are politically exposed persons (PEPs)? If so, who are those PEPs and does their source of wealth present any red flags? Are customers who are nationals of countries associated with high levels of human trafficking creating accounts in large numbers, and if so, do those accounts present signs of unusual activity?

·      Product – A crypto business needs to consider how any product features might impact its risk exposure. Does the product enable the rapid conversion of fiat currency to crypto in a way that might prove attractive to money launderers? Is the product vulnerable to high value money laundering, or do its features present a risk of lower-value money mule activity that can be pervasive but difficult to detect?

·      Delivery channel – A crypto business also needs to think carefully about the risks related to how customers access its product or platform. Is it only accessible online? Or does the product involve Bitcoin ATMs or other physical infrastructure that customers can use?

In addition to assessing these general risk categories, crypto businesses should think carefully about the money laundering and terrorist financing risks that their specific offerings present.

For example, whether they provide an online exchange service, a crypto ATM network or crypto prepaid cards, crypto businesses will face unique money laundering typologies and criminal vulnerabilities that are highly specific to their business type. Recent cases suggest that criminals are becoming savvier in exploiting a diverse range of crypto-related products and services, seeking out platforms that allow them to engage in increasingly complex money laundering schemes. Developing bespoke risk management solutions requires understanding these typologies in detail.

https://www.independent.co.uk/life-style/gadgets-and-tech/news/coincheck-hack-nem-latest-updates-japan-bitcoin-theft-cryptocurrency-inspect-exchanges-south-korea-a8183281.html

https://www.standard.co.uk/news/crime/drug-dealers-using-londons-bitcoin-atms-to-launder-cash-according-to-organised-crime-cops-a3709221.html

Crypto business should also assess the financial crime risks around the types of cryptocurrencies they provide. For example, privacy coins with high levels of anonymity such as Monero may present unique risks and challenges. It may prove challenging to monitor customer activity where these coins are present. Crypto exchanges that offer privacy coins to customers need to be aware of the resulting impact on their risk profile.

https://www.coindesk.com/fbi-concerned-about-criminal-use-of-private-cryptocurrency-monero/

It’s important to remember that a risk assessment process should be supported by a sound methodology that enables a company to understand the evolution of its risks over time. This should include:

·      developing a logical approach to measuring inherent and residual risks;

·      ensuring risk assessment findings are thoroughly documented and presented clearly to senior management; and

·      having processes in place for updating the risk assessment, in whole or in part, when new business lines and products are launched, geographical expansion occurs or other trigger events arise.

#2 Defining Risk Appetite

 When a business understands its risks, it can decide which risks it finds acceptable, and those it finds too high.

A financial crime risk appetite statement can allow a crypto business to scale and develop new products and services in a thoughtful manner that ensures commercial goals are achieved without taking on excessive risk. As the Financial Stability Board has indicated[2], a good risk appetite statement can achieve several goals, including:

·      setting quantitative measures that track exposure to key risks, enabling proactive mitigation of risks before they become unacceptably high;

·      establishing limits to risk taking so that staff have a clear understanding of unacceptable risks; 

·      defining staff members’ roles and responsibilities for mitigating risks; and

·      providing a baseline against which assurance functions can test that systems and controls are enabling the company to operate within its risk appetite.

By clearly defining the levels of risk they are willing to assume, a company’s senior management can establish a clear ‘tone from the top’ and foster a strong company culture. Failure to do so can result in a lax risk management environment that leaves the company exposed to reputational and regulatory risk.

https://www.coindesk.com/japan-blasts-crypto-exchange-execs-first-ever-license-rejection/

 #3 Building a Compliance Team and Governance Arrangements

A strong company culture on financial crime is only possible if supported by a competent and effective team of suitably qualified AML/CTF compliance professionals.

Even the smallest crypto companies should ensure that they have adequately experienced staff who understand financial crime risks, regulatory requirements and appropriate control measures. To this end, it is important to make sure that staff have received appropriate training. As the UK’s JMLSG[3] advises, training should include ensuring staff awareness of:

·      the company’s risks, as identified in its financial crime risk assessment;

·      the company’s financial crime policies, procedures, systems and controls;

·      AML/CTF regulatory requirements applicable to the company, and the consequences of breeching those requirements;

·      the types of high risk customers the company encounters, and enhanced due diligence (EDD) measures that are in place to manage them; and

·      red flag indicators of suspicious activity specific to the company’s product and service offerings, and procedures for filing suspicious activity reports (SARs).

Larger companies should think carefully about how to structure their compliance functions so that risks are managed appropriately, and to ensure that senior management can monitor those risks over time. Compliance teams should be suitably resourced and visible within the company.

This may be accomplished, in part, by establishing financial crime risk committees that are comprised of senior risk and compliance staff and that review key management information to assess the effectiveness of controls and identify emerging risks. Robust governance arrangements can ensure that risk management functions are on the front foot against financial crime and are not merely reactive.  

https://www.reuters.com/article/us-cryptocurrency-coinbase/cryptocurrency-exchange-coinbase-hires-chief-compliance-officer-idUSKBN1KL1BH

#4 Choosing and Tuning Tools 

To be effective, a financial crime compliance team must be more than just impressive-sounding titles.

Compliance functions must develop and utilise effective AML/CTF policies and procedures whilst having access to systems and controls that are proportionate to the risks their business faces.

Policies and procedures should be developed with the aim of mitigating a company’s risks as identified in its risks assessments. This could include, for example, having in place specific EDD measures for identifying customers’ source of wealth where less transparent products or services are used.

Financial crime systems and controls – such as identification and verification tools, transaction monitoring systems and sanctions screening solutions – should be appropriately calibrated to ensure a firm can operate within its risk appetite.

Bitcoin ‘track and trace’ forensic tools have also been developed and are already assisting many crypto industry participants in identifying and managing risks.

These systems and controls should be subject to regular audit and testing to ensure they mitigate key risks and meet regulatory expectations. 

As JMLSG notes[4], effective systems and controls are generally characterised by factors such as:

·      alignment with regulatory requirements and expectations;

·      appropriate resourcing; and

·      competent staff operating the controls.

Whether a company chooses to undertake internal or external audit, it needs to be able to demonstrate that systems and controls are compliant whilst also enabling it to manage its risks in practice. 

#5 Working with Partners

 Strength is in numbers, and crypto businesses can bolster their defences against financial crime by sharing information with their industry peers.

At FINTRAIL, we’ve co-founded the FinTech Financial Crime Exchange (FFE), a partnership of over 50 UK FinTech companies, including several of the UK’s leading cryptocurrency firms.

Through the FFE, crypto and other FinTech companies can share information on financial crime typologies they encounter and best practices for prevention and deterrence.

Proactive involvement in industry partnerships, self-regulatory organisations and other similar platforms can enable a company to stay on the front foot against financial crime.

---

Other Financial Institutions

It’s not just crypto businesses that need to be aware of the changing regulatory climate. Banks and other financial institutions must be alert to the crypto-related risks they face.

As the UK’s FCA stated in its letter to firms in June 2018, ‘You should take reasonable and proportionate measures to lessen the risk of your firm facilitating financial crimes which are enabled by cryptoassets.’[5]

We’ve identified some ways that non-crypto financial institutions can tackle the crypto challenge.

#1 – Measure Risk Exposure

Banks and other firms should not just make blanket assumptions about the nature or extent of cryptocurrency-related risks they may face. A risk assessment and benchmarking exercise can assist in determining the extent of any exposure, whether direct or indirect, a firm may have to cryptocurrency services and users. For example:

·      a large bank undertakes a review of customer transactions to determine whether any customers are acting as unlicenced crypto brokers on sites such as LocalBitcoins.com;

·      a prepaid card provider conducts a review of customers’ spending patterns to determine which customers are buying cryptocurrencies from exchanges, and to understand the nature of that activity;

·      a wealth management firm conducts a risk-based review to determine whether any high net worth customers may obtain their source of wealth from cryptocurrencies, ICOs or other crypto-related products.  

https://www.coindesk.com/9-years-localbitcoins-trader-sentenced-latest-money-transmission-case/

https://www.scmp.com/magazines/style/people-events/article/2140278/bitcoin-millionaires-buy-lamborghinis-status-symbol

#2 – Develop Risk-Based Business Strategies

 Having assessed the nature of any exposure to cryptocurrencies, a firm can begin to make informed decisions about the types of cryptocurrency-related activity it is willing to accept.

Understanding risks and assessing them in a thoughtful way can allow firms to move beyond knee-jerk de-risking of cryptocurrency-related business.

A thoughtful-risk based approach enables firms to maintain exposure to crypto activity and seek opportunities in this exciting new space without taking unnecessary risks.

For example, a firm can implement an approach that allows it to:

·      accept cryptocurrency activity that presents relatively low levels of risk, such as simple trading of Bitcoin on a regulated exchange;

·      engage cryptocurrency businesses that operate in certain jurisdictions but not in others that would present risks of sanctions breeches or other unacceptable activity; and

·      clearly articulate those crypto-related products and services it is not willing to accept so that staff are aware of activity that may not be pursued.

https://www.ccn.com/banks-still-closing-accounts-bitcoin-activity/

#3 – Cultivate Expertise 

Banks and other firms should develop knowledge of cryptocurrencies among their AML/CTF compliance staff, as well as among their financial intelligence units and investigative teams.

Training and ongoing educational opportunities on cryptocurrencies should be provided to key staff members, who will then be equipped to play a proactive role in managing risks in a thoughtful and truly risk-based manner.

Crypto-focused training can include developing staff understanding of:

·      relevant financial crime typologies;

·      available crypto-related products and services;

·      significant industry developments; and

·      the evolving regulatory landscape around cryptocurrencies.

#4 – Deploy Bespoke Controls

It’s important to avoid the temptation to treat cryptocurrency risks like any other financial crime risks.

Cryptocurrency risks warrant bespoke approaches.

When assessing the risks around customers or transactions involving cryptocurrencies, firms should measure risks considering the unique circumstances of the situation.

For example, if a pre-paid card customer is observed purchasing cryptocurrencies from an exchange, it may help to understand if that exchange has a sound reputation and is subject to regulation before deciding if the activity is acceptable or not. This requires having in place a carefully designed methodology for assessing the risk factors around cryptocurrency exchanges.

Developing an effective control framework can also include considering whether to utlise cryptocurrency forensic tools for monitoring customers’ crypto activity or for use in conducting complex investigations in support of SAR filings.

What’s important is that these controls are designed and deployed in a thoughtful manner, and tested to ensure they work effectively.

https://www.wsj.com/articles/bitcoin-needs-bankers-too-a-handful-of-community-banks-say-yes-to-crypto-1526997601

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Summing Up

As regulators take a closer look at cryptocurrencies, firms must take the initiative and ensure they are managing the financial crime risks.

Whether you’re a cryptocurrency exchange, retail bank, FinTech or other financial institution, the time to begin building a robust crypto risk management framework is now.

At FINTRAIL, we’re equipped to assist your business in its cryptocurrency risk management journey. Whether it’s

·      designing bespoke risk assessment methodologies and conducting risk assessments;

·      defining risk appetite statements and measuring adherence to risk appetite;

·      developing and delivering financial crime training;

·      establishing and supporting financial crime committees and other governance arrangements;

·      designing new policies processes, tools and systems; or

·      establishing audit and assurance arrangements, and conducting tests of systems and controls

Our team of consultants is here to help.

[1] Europol, From Suspicion to Action: Converting financial intelligence into greater operational impact, 2017, p. 18.

[2] See http://www.fsb.org/wp-content/uploads/r_131118.pdf

[3] See JMLSG, chapters 7.29 – 7.41.

[4] See JMLSG, chapter 3.35.

[5] https://www.fca.org.uk/publication/correspondence/dear-ceo-letter-cryptoassets-financial-crime.pdf

Geopolitics & Cryptocurrency

Cryptocurrencies have been a controversial topic in the FinTech space and wider financial sector in recent years.  Despite a reputation for higher financial crime risk, their increased popularity makes them difficult to ignore and financial institutions are looking for compliant ways to engage.  With evidence to suggest that sanctioned governments are using cryptocurrencies, a robust and responsive risk approach is necessary.

Korean Cryptocurrency

The divisions between north and south are complex, but at first glance it would seem South Korea leads when it comes to the FinTech sector, and more specifically cryptocurrency trading.  Along with Japan, they are regional leaders and South Korea is home to some of the world’s largest crypto-exchanges, including Bithumb and Upbit, with a disproportionate volume of trade passing through its markets.

There has appeared in recent months to be the potential for a thawing of international relations for North Korea, which has been under UN sanctions since 2006, and US sanctions from as far back as 1950.  In recent weeks there have been renewed calls from Kim Jong Un’s regime for an end to US sanctions, following the North Korea-US summit in June, where Donald Trump suggested an agreement could be reached.  But with latest UN reports suggesting the Kim regime is continuing to build their nuclear military capability, a lifting of sanctions is unlikely to happen soon. This makes any North Korean involvement in the relatively borderless market of cryptocurrency trading a cause for concern.  

As sanctions persist, the decentralized, interconnected and potentially anonymous nature of cryptocurrencies offers a portal into the international economy.  It is a way to circumvent economic restrictions that hold the country in poverty, and to continue to fund the country’s nuclear programme which is estimated to cost 30% of the country’s GDP.  Despite the hardship of ordinary people, Kim is himself worth an estimated $5 billion. An unsurprising fact, as North Korea is among the most corrupt in the world, currently 171 out of 180.  Much of Kim’s wealth is rumoured to be held overseas, making the illicit movement of funds a high priority and the under-regulated alternative of cryptotrading very attractive.  The difficulty of tracing the source of virtual funds, especially when trading involves private coins that anonymise the seller and buyer, is compounded when digital assets are exchanged for legal tender.  The dollars, euros or pounds can be entirely without trace of their suspicious origins.

The regime has also allegedly turned its hand to simple theft of cryptocurrencies.  Utilising established cyber capabilities, witnessed in such devastating international cyber attacks as 2017’s WannaCry ransomware attack, North Korea is the main suspect behind at least three successful hacking attempts of cryptocurrency exchanges within the past year. This includes the security breach of the Japanese exchange Coincheck in January, where an equivalent of $530 million worth of coins and tokens was stolen. It is uncertain how much of this reached North Korea, although some estimate the regime was in possession of $200 million worth of Bitcoin and other cryptocurrencies as of March 2018.

Russia’s Crypto Measures

Along with ongoing talk of a national Russian cryptocurrency, the CryptoRuble, that could potentially evade sanctions, another example of the growing interplay between state-sponsored financial crime and digital assets can be seen in Russia’s alleged meddling in the 2016 US election.  Last month, as part of the ongoing Special Investigation led by Robert Mueller into Russian active measures to influence the outcome of the election, 12 Russian nationals were indicted for hacking email accounts affiliated with Hillary Clinton, using cryptocurrencies in an attempt to cover their tracks.  

The perceived anonymity of cryptocurrencies made them the means of choice for facilitating this cross-border criminality.  However, in this case, they were in fact the means by which the criminals were identified. In the indictment, conspirators were identified using the same pool of bitcoin funds to purchase infrastructure that was used for the hacking, such as a virtual private network (VPN).  They also raised funds through bitcoin mining.

It also detailed how they obscured the origin of bitcoin they received:

‘this included purchasing bitcoin through peer-to-peer exchanges, moving funds through other digital currencies, and using pre-paid cards.  They also enlisted the assistance of one or more third-party exchangers who facilitated layered transactions through digital currency exchange platforms providing heightened anonymity.’

As the indictment shows, attention to the mechanisms of virtual currency trading is increasingly relevant to the crime itself.  They laundered ‘the equivalent of more than $95,000 through a web of transactions structured to capitalize on the perceived anonymity of cryptocurrencies’.  The growing awareness and recognition of the intricacies of the cryptomarket by authorities, means the same will be expected of financial institutions. It was noted the 12 Russians used a mix of currencies including US dollars so the border between fiat and cryptocurrencies needs to be understood as an institution that believes itself to deal only in one or the other, is likely exposed to both.

Practical Steps for FinTechs

With over 1500 cryptocurrencies currently in circulation, a first step for a FinTech engaging with cryptocurrencies is to be aware of the relative risk of different cryptocurrencies, with the highest risk being private coins and of course coins created by sanctioned entities, such as Petro coin by Venezuela.

Weak KYC and verification processes on signing up for an account with a crypto-exchange is an important factor.   Weak KYC can be deliberately aimed at encouraging wider adoption, with minimal identification required, often with an ideological basis of preserving the anonymised freedom of the virtual realm.

Geography is central to assessing financial crime risk.  While the majority of exchanges have some restrictions in place for the jurisdictions they serve, usually in line with international sanctions, others such as Russian crypto-exchange Simex will allow a North Korean citizen to sign up for an account.

Regulatory status of a crypto-exchange is a particularly fast evolving risk factor.  There is a global move towards both self-regulatory organisations and the establishment of regulatory authorities.  However it is evident that exchanges with lower levels of regulation often have more users and more coins on offer. A lack of oversight that makes these platforms more vulnerable to financial crimes like money laundering, terrorist financing and yes, sanctions evasion.

Conclusion

While cryptocurrency trading continues to shift and adapt to geopolitical trends, FinTechs are excellently placed to respond to changes as they emerge. A comprehensive understanding of the unique financial crime risks surrounding cryptocurrencies and how this is situated in its political landscape will allow firms to assess both the individual customer and their virtual funds in their full context.  Cryptocurrency trading is one weapon in the cyber arsenal of hostile states such as North Korea and this dimension of risk from sanctioned entities should be included by any FinTech looking to deal with crypto funds. As seen in the case of Russian active measures, proper controls can go far in tracing criminal use of cryptocurrencies, and - with the accuracy and permanence of digital transaction data - perhaps even more so than traditional currencies.

5AMLD - What To Look Out For

Just over a month ago, the final text of the Fifth Anti-Money Laundering Directive (5AMLD) was published, kicking off the 18-month countdown until it comes into play. Its precise, full impact is unknown for now, but it is expected to significantly impact the way governments, regulators and businesses in Europe have to approach financial crime risk.

What’s the rush?

This new directive followed the former surprisingly quickly in large part due to the rising popularity of digital currencies combined with the hysteria following the Panama Papers. Given it’s only been 2 years since the last AMLD was adopted (some countries are still trying to implement it), compared to the 12-year gap between the previous AMLDs, it is clear the European Commission is focused on reassuring people and businesses that they are on top of new and developing issues.

What does 5AMLD actually change?

The key change from the 4AMLD comes in the definition of “obliged entities”, increasing its scope to include virtual currencies, anonymous prepaid cards and other digital currencies. Previously, there have been no specific laws aimed to cope with the risks of virtual currencies and it’s clear that with this new directive, the European Commission is intent on making sure that virtual currencies do not become a safe space for criminality. It also shows clear signs of their move to increase the scope of the fight against money laundering (ML) and terrorist financing (TF), as criminals can take advantage of the anonymity of virtual and digital currencies.

The other key aspect of the 5AMLD is that it further clarifies the requirements and timings for the implementation of the required beneficial ownership registers introduced in the 4AMLD. Essentially, member states and the European Commission will be required to keep accurate and up to date registers that must be interconnected to the European central platform. This integration will allow for more efficient information sharing, making it easier to combat ML and TF.

Other features include the adjustments made to address Politically Exposed Persons (PEPs), expanding the definition and pledging to publish a combined list of EU and Member states’ lists of all prominent public functions. Traditionally, a “one size fits all” and “once a PEP, always a PEP” approach has been used, but this system is not adequately risk-based. The new regulations hope to address this issue by integrating a more nuanced and comprehensive approach to identifying and managing the financial crime risked linked to PEPs.

There is also set to be enhanced co-operation and information sharing among EU Financial Intelligence Units (FIUs) in the hope that this will make information more easily accessible and align with international best practices. FIUs across the EU receive broader powers under the 5AMLD as they will no longer need be limited to the identification of a predicate offence or suspicious activity report prior to filing an information request.

So, how to prepare?

With this new directive being introduced, here are a few things firms may want to consider in preparation:

1)    Virtual Currencies – 5AMLD will require obliged entities, i.e. providers engaged in exchange services between virtual and fiat currencies, to be registered and to comply with AML and CFT requirements. National authorities will be authorized to obtain all the associated information and regulate them accordingly. Exchanges that fall under the definition of an obliged entity will need to start benchmarking their existing frameworks against existing EU and jurisdiction specific AML & CTF controls and making any appropriate enhancements.

2)    PEP Categorisation – With changes being made to PEPs, firms may want to start thinking about how they categorise PEPs and how they apply different levels of monitoring such that when the new categorisation criteria come in, they are prepared

3)    Increased Reporting – Under new business ownership discrepancy rules, firms will be obliged to report discrepancies they find between the beneficial ownership information available in the central registers and their own registers. In the case of reported discrepancies, Member States will be obliged to ensure that appropriate actions be taken to resolve the discrepancies in a timely manner.

4)    Due Diligence Advances – 5AMLD will require a specific Enhanced Due Diligence list to be applied when dealing with high-risk countries defined by the European Commission. You should review and update your due diligence processes to ensure full compliance.

If you need any help scoping enhancements for implementation or indeed reviewing whether your current procedures meet the requirements of EU or jurisdiction specific requirements, FINTRAIL will be happy to offer assistance.

UK Suspicious Activity Reports (SAR) - Balancing Customer Experience in a FinTech

Suspicious Activity Reports (SARs) are familiar to many of us as the mechanism used by obliged entities to report suspicion of money laundering or terrorist financing to relevant authorities. However, the SAR process can cause some challenges for early stage FinTechs who are trying to balance regulatory requirements with transparent and customer centric service. It is something we get a lot of questions about, so we thought we would outline some hints and tips on things to think about.

In the asymmetrical game of whack-a-mole that is the fight against financial crime, SAR’s are a useful but sometimes imperfect tool for generating intelligence about financial criminals. Notifying the appropriate financial crime enforcement unit such as the National Crime Agency (NCA) when a Defence Against Money Laundering SAR (DAML) is required is not only the right thing to do but also usually a regulatory and legal requirement. DAML SARs, as the name implies, are reports that describe the most important facets of activity that could be regarded as suspicious and indicative of money laundering.  Their regulatory purpose can’t be understated, as they act a conduit between the events themselves, the handling of the questionable funds, and possible investigation by law enforcement.

However, the nature of SARs and the context they operate in can be challenging. This is especially true for companies and especially start-ups in the FinTech sector who are seeking to meet their regulatory and legal requirements while also providing a great customer experience. FinTechs are operating in an interesting era, where customer feedback on social media and review sites such as TrustPilot have tangible impact on the success of a product or service. They also provide a challenge to financial crime teams and those responsible for public relations (which we discuss below).

We aren’t going to dive deep in to the overall requirements of the SAR regime in this blog, we would be here for some time! Instead, we will focus on a few practical tips for FinTechs to consider when balancing customer experience and their regulatory and legal requirements. Wider SAR guidance is available from the likes of the NCA and the team at FINTRAIL are always available to offer advice.

1.    It will happen

The first thing we stress to our customers who form part of the reporting regime is that, at some stage, you will to have to deal with a customer and the SAR process. You are better developing a simple internal process before it happens. Think about what your team needs to do when dealing with a customer subject to an investigation before you have the additional pressure of them asking for answers. Equally, ensuring you have clear customer off-boarding/exit process will also ensure this is done in a timely and fair way. Once you have a process established, ensure your team is well trained and understands the risks and challenges associated with customer investigations.

2.    Don’t Panic

The language around SARs and things like “tipping-off” can be intimidating, especially when you see terms like criminal offence. Don’t panic about this. By doing step 1 first you will be able to make sure you meet your obligations. No one is perfect, and mistakes sometimes get made, just make sure to learn from those opportunities.

3.    Have a strategy for customer engagement

It’s well known - particularly in the FinTech community, where customer interaction is vital, immediate and direct - that some of those who engage in financial crime are wily and tenacious. They can be hostile in their communications once transactions are blocked, or accounts are suspended pending investigation or the submission of a SAR. Those who must deal with them are presented an unenviable operational challenge: they cannot give anything away that would make the criminal suspect they are the subject of investigation/SAR (“tipping off”), but nor can they lie and treat the customer unfairly.

Each instance is different, but there are some suggestions that are practical for most encounters:

• Don’t ignore customers, as positive engagement is a better strategy than ignoring them. Be polite, professional and responsive but have a clear line and stick with it.

• Proactively provide your customer ops or support teams with standard lines or approaches to take in response to customer enquiries. Make sure they have training on these approaches and they are broadly consistent.

• Trust in your policies and processes, they are there for a reason. However, if you find something has gone wrong make sure you capture the reasons and put it right.

• Do not be swayed by threats. This is a tactic we have seen used on several occasions to try and force a response from the obliged entity and put those people dealing with them under increased pressure.

• As an organisation, you should have a zero-tolerance policy to harassment or intimidation and if this occurs you should immediately involve your local law enforcement.

• Just because they are subject to a SAR doesn’t mean their rights as a customer are suspended. Refer them to relevant departments, such as complaints, in the appropriate circumstances.

• Sometimes it’ll be necessary to move the case up the chain to someone on the team with greater authority or more knowledge of the situation. Knowing when to do this, and when not to, is important.

• Be responsive on social media and to customer reviews. The compliance/financial crime and PR/social media teams can collaborate to standardise responses to negative feedback from customers on the back of investigation or exit process, without the risk of tipping-off.

• However, do not get dragged in to drawn-out back-and-forth with customers on social media. Provide a clear, well-judged and visible response but do not allow them to bait you.

4.    Write clear and accurate SARs/DAML SARs

In the UK especially, the NCA receives hundreds of DAML requests every day and thousands of SARs. To help law enforcement process those requests as efficiently as possible and therefor provide you with the response you may be requesting, it is important to ensure you follow guidance and provide complete, well written and concise SARs. Equally, make sure you follow relevant guidance on when and when not to file a SAR or DAML SAR to avoid over filing and creating unwarranted operational challenges.

Without a doubt, SARs perform a valuable function, and they have proven their worth countless times by helping to start and inform investigations into criminal activity. However, the SAR process can cause operational and customer challenges that if considered before they happen, can be managed efficiently while still maximising a great customer experience.

GDPR Principles: Vetting Data Processors In A Digital World

GDPR no longer needs any introduction, and here at FINTRAIL, we loved collaborating with the team at Jumio to help them launch their GDPR e-booklet, which you can download here.  

Together, we came up with 5 key principles that we think best help data controllers understand the activity of their online identity verification providers, and whether or not they’re fully GDPR compliant. Data processors in this space handle vast amounts of sensitive, personal data that, while integral to ensuring customers are who they say they are, can also be exploited or mishandled.  As such, GDPR compliant practices are key.

In brief, these are the main questions that controllers can ask of their processors which will help frame their thinking on this important aspect of compliance:

1. Human Review: How are verification decisions made and what recourse do data subjects have to challenge those decisions?

   • GDPR gives individuals the right not to have significant decisions made about them solely on the basis of automated processing.

2. Compliant Machine Learning: Does the data processor employ Compliant Machine Learning?

   • Under GDPR, vendors can only develop specific AI models trained on the data of a given customer and cannot leverage data from other customers to create more comprehensive models.

3. Data Retention: Can data retention policies be tailored to your business requirements?

   • Clear processes around data retention and deletion help processors and controllers deal with the stipulations around Subject Access Requests.

4. Data Breach Notifications: Do you have a data breach notification process in place and has it been tested?

   • Processors, as well as controllers need to be able to inform relevant parties of any data breach in a timely fashion; having clear and verified processes around this is one step in the right direction.

5. Data Encryption: Is personal data encrypted and protected appropriately?

   • Proper data protection and encryption reduces the likelihood of a breach and increases the privacy of citizens’ information. GDPR stipulates that personal data is properly protected.

You can read more detail in the e-booklet of course, and find out even more information about GDPR, its implications for processors, how best to approach these questions, and exactly how Jumio is helping controllers maintain and manage their GDPR compliance through its innovative identity verification solutions and careful approach to data privacy.

Cryptocurrencies and UK FinTechs: Perspectives and Experiences of Financial Crime

The UK FinTech FinCrime Exchange (FFE) has just launched its latest white paper on FinTech perspectives and experiences on the nexus of cryptocurrencies and financial crime.

Cryptocurrencies experienced a meteoric rise in both value and popularity at the end of 2017.

While the value of popular cryptocurrencies such as Bitcoin has declined, interest has remained. International governments have been slow to regulate the emerging market, and many in the traditional financial services sector and wider public have expressed concerns related to the ability of cryptocurrencies to facilitate financial crime.
This paper answers the following questions: how does the UK FinTech sector perceive the risks associated with cryptocurrencies, and how are they managing the challenges related to this new disruptive technology?

Our research suggests that while some UK FinTechs have considered engaging more with cryptocurrencies, perceived financial crime concerns, the need for meaningful AML/CTF controls and the lack of regulatory clarity have fostered an attitude of caution.

We found that perceptions of financial crime risk associated with cryptocurrencies differed from actual experiences of FFE members.   These perceptions had a disproportionate impact on how Fintechs chose to engage with cryptocurrencies, limiting their appetite for extending their exposure, and for some, that of their banking partners.

The paper recommends that FinTechs not be deterred by the challenges associated with cryptocurrencies, as financial crime concerns can be managed through tailored, risk-based anti-financial crime tools, and a solid understanding of any areas of concern through a detailed risk assessment process. Regulators as well as law enforcement actors should collaborate more with FinTechs in order to improve the broader understanding around cryptocurrencies, financial crime and new regulatory developments.

More detailed findings are presented in the white paper.

For more information on the FFE or on cryptocurrencies and financial crime, please contact the FFE Admin.

FFE Expansion - Holland

FINTRAIL and RUSI, in partnership with Holland FinTech and bunq, are pleased to announce the launch of the Dutch FinTech FinCrime Exchange (FFE NL)!

The FFE NL is a local network connecting the Dutch fintechs to enable sharing of information and typologies, to help strengthen the sector’s ability to detect and counter the global threat of financial crime. The launch of the FFE NL also marks the FFE’s first step toward global expansion and the development of an international, interconnected network for financial crime information sharing.

The initiative leverages on the success of the FinTech FinCrime Exchange (FFE) UK and builds on its best practices, while also connecting local actors.  The FFE UK is a member organisation of over 45 of the UK’s leading FinTechs, who share information and financial crime typologies and controls. The FFE network produces white papers to exchange best practice on financial crime risk and compliance mechanisms, and share experiences and inform relevant stakeholders in law enforcement, government and regulatory bodies.

The global scope of financial crime and the shared threats faced by all major FinTech hubs particularly underscore the need for the FFE NL, which will give its members not only a trusted place to exchange information, but also access to an increasingly far-reaching network of resources and perspectives.

The first FFE NL meeting will be held on 30 May in Amsterdam, designed to align with the ACAMS 14th Annual AML & Financial Crime Conference Europe.

The FFE network is currently free for members.  For more information on FFE NL or to register interest in membership, please contact ffe_admin@fintrail.co.uk. 

The FFE was founded in January 2017 by FINTRAIL, a financial crime risk management consultancy, and the Centre for Financial Crime and Security Studies at the Royal United Services Institute (RUSI). 

Investment Due Diligence: Leave No Stone Unturned

Due diligence - a term bandied about readily with much confidence across many different sectors - broadly accepted as a process that underpins a thorough and confident appraisal of a specific business proposition, perhaps a significant merger, acquisition or other investment. At its most effective, due diligence arms a business with the facts it needs to make confident, astute decisions. At its worst, poor due diligence muddies already murky waters and potentially guides businesses down the wrong path.

To avoid the latter outcome, it’s best to avoid an off the shelf, one-size-fits-all process and instead adopt a bespoke approach that accounts for all inherent risks associated with a particular proposition.

Venture capital (VC) investment in FinTech - a booming industry - is a case in point. VCs have to understand complex business models and cutting-edge technology to pinpoint viable investment opportunities. Armed with millions, or indeed billions - $1.8billion was raised by UK FinTechs in 2017 - and facing fierce competition from other VCs, the panoply of risks presented by startup FinTechs could appear daunting.

VCs will often feel most comfortable assessing the viability of the business model, legal and financial aspects and will engage experts to evaluate the technology. That makes perfect sense. The success of a FinTech largely hinges on a successful combination of those areas and, more often than not, those are the risks most familiar to VCs. However, other stones sometimes remain unturned..

People risk is often overlooked or considered addressed through a simple criminal background check. With the wealth of information sources now available it’s perhaps remiss not to take a closer look at those who you’re investing in. Start-up scams are not uncommon in Silicon Valley; an early 2017 Fortune article explored the sector’s “unethical underside”. Are the founders who they say they are? How accurate are CVs and other stated accomplishments - the CEO of Wkriot pleaded guilty to fraud last month. Have failed attempts to fund other start-ups been disclosed, what about other initiatives that crashed spectacularly? Are other business interests in play that conflict with those of the VC? Many a business leader and politician have fallen foul of skeletons discovered in cupboards they’d long since forgotten about.

How about the culture of the firm? Is there evidence of unethical practices in the founders’ previous businesses? What does social media tell us? The merest hint of unethical behaviour could have a huge impact on culture of the firm, which in turn could lead to corners being cut, regulations not properly adhered to and risk decisions ignored or taken well outside of risk appetite.

Thorough due diligence of a FinTech couldn’t be considered complete without a close look at how its offer might be exposed to financial crime risk. The fledgling nature of the firm will mean a full risk assessment isn’t possible, but early inspection of the proposal will allow for an early judgement to be made on the type of controls and framework needed to deliver a compliant and secure product.

An effective due diligence exercise should alert a VC or other investment firm to concerns in any of these areas. However, if risks go unflagged through neglectful or absent due diligence they hold the potential to manifest further down the line with grave consequences for the VC and other stakeholders.

FINTRAIL would be delighted to discuss structuring a bespoke due diligence process for any aspect of prospective investments. Our team have deep experience in conducting due diligence for global banks, investors and government agencies and have a wealth of cutting edge tools at our disposal.

A Step in the Right Direction Toward Mitigating Cryptocurrency Risks

It’s a truth universally acknowledged that cryptocurrencies have the power to create a more dynamic, mobile and accessible financial ecosystem, and the enormous potential of the underpinning distributed ledger technology (DLT) for application outside the financial sector is nowhere near being realised.

But as with most great strides in innovation, there are concerns and risks to address, understand and mitigate as early as possible. FINTRAIL has a keen interest in this fast-paced arena and is working with the UK FinTech FinCrime Exchange (FFE) to publish a white paper later this month exploring FinTech perspectives on and experiences of cryptocurrencies.

In the meantime, UK MPs are launching an inquiry into cryptocurrencies, including exploring the financial crime risks related to cryptocurrencies.

A government review of the need for cryptocurrency regulation is no surprise. The explosion of growth in the sector continues unabated. The German and French governments  have called for greater regulatory coordination ahead of November’s G20 meeting. And the US Securities and Exchange Commission (SEC) has described cryptocurrency as an “across the border priority.” The UK inquiry also coincides with news that seven of the UK’s largest crypto companies have formed a self-regulatory body, CryptoUK, with the intention of promoting best practice and working with the government and regulators.

The Treasury Committee will no doubt consider the late-2017 revision of the EU 4th Anti-Money Laundering Directive (4AMLD), known as 5AMLD that delivers a definition of “virtual currencies,” which include cryptocurrencies, for all member states to adopt in AML legislation.[1]

In addition to the definition, the 5AMLD aims to mitigate risks associated with the use of virtual currencies for terrorist financing. To do so, the 5AMLD extended the scope of “obliged entities”, which previously included financial institutions, accountants, lawyers, estate agents etc., to include cryptocurrencies and other related services such as exchanges and custodial wallet providers. This is significant as it acknowledges that cryptocurrencies and their supporting services carry the risks of money laundering and terrorist financing and that KYC policies, EDD controls and transaction monitoring are required alongside the immediate submission of suspicious activity reports to law enforcement.

While adoption of the new rules into national legislation will take time the principles of the 5AMLD and the obvious appetite from EU member states, the US and the cryptocurrency sector itself to bring about a more coordinated regulatory position, will inevitably play an important role in the deliberations of the Treasury Committee.

Regardless of the outcome of the inquiry, government scrutiny of cryptocurrency at a time when uncertainty and volatility pervade the sector is an encouraging development.

As to the 5MLD, further work is needed to ensure legislation keeps up with the high-tempo cryptocurrency risk landscape; however, for the time being, EU acknowledgement that cryptocurrency carries financial crime risk is a much-needed starting block.

[1] Virtual currency is not synonymous with cryptocurrency. Virtual currencies are tradable digital representations of value that are not issued by any government and don't have status as legal tender. Virtual currencies can have a central administrator (as in the case of services like WebMoney, or game-based currencies like World of Warcraft Gold); or they can be decentralised cryptocurrencies, which use cryptography to validate and confirm transactions.

Unravelling the Complexity of Multi-Jurisdictional KYC

Scaling up is a natural part of any FinTech’s journey. This typically involves the exciting opportunity of offering your product or services in new jurisdictions overseas. However, this growth comes with significant regulatory and practical know your customer (‘KYC’) complexity that may expose you to regulatory risk.

Here are some factors to consider when adjusting your onboarding policies and procedures to support customers from new jurisdictions:

Onboarding Portal

You may think setting up in a new country just means copying and pasting your current onboarding portal into another language. Unfortunately, it’s not that simple. Some countries may have different legal entity types or have entity types that do not translate directly. There are also different types of identification numbers in some countries that are given to sole traders and businesses, so make sure to request the correct number. Be careful to ensure your initial KYC questions are clear in all languages on your websites and apps to prevent customer confusion.

Identification

UK Joint Money Laundering Steering Group (‘JMLSG’)  guidance recommends asking for an individual’s name, date of birth and address. But be aware, some countries require more information! In half of the countries we’ve looked at, national identification numbers, like social security numbers, were required. Place of birth and nationality were other common identification asks in other countries. This could require several operational changes, from rewriting some of your procedures, to redoing parts on your onboarding portal.

Verification of Companies

In the UK, many FinTechs will verify the identities of legal entities against Companies House. However, there is no registry for sole traders. In other countries, it is important to check if there is a register for sole traders that should be used for verifying identities as part of KYC, as around two-thirds of countries we’ve looked at had some searchable registry of sole traders. Furthermore, other countries’ corporate registries may not be as easy to navigate as Companies House--requiring you to purchase certain documents or existing as one of multiple company registries. Third party providers should be checked to ensure they are accessing data directly from your jurisdictions’ registries. Understanding verification options for companies and sole traders is important for simplifying your operations.

Documents

In the UK, a primary government-issued photo ID includes a passport, identity card, driving license, biometric residence permit or firearms license. However, in several countries, a drivers licence is not actually considered a primary form of photo ID for compliance purposes. For secondary documentation, while a document from a bank or utility provider may be acceptable in the UK, this is not always the case in other jurisdictions.

Beneficial Ownership

While the 4th MLD made it a requirement for countries to have a publicly-accessible beneficial ownership registry, this is still slowly being implemented in some countries. Of the EU/EEA countries we’ve checked, a UBO register was only available a little more than half of the time. Many countries outside of the EU have shown very little progress on the issue of a publicly-accessible registry of beneficial owners. Not being able to refer to a public registry of beneficial owners may add unforeseen operational costs and considerations that should be taken into account to ensure a smooth rollout.

Directors

JMLSG clearly outlines requirements for identifying a legal entity’s directors and senior management when commencing a business relationship. However, the vast majority of countries we’ve checked do not have explicit policies around the identification of directors. Some may include directors in their definition of beneficial owners, however. This ambiguity could lead you to having to rethink your AML/CTF standard operating procedure on who to identify.

Certification

When information is not easily available to verify through eKYC or checks against a registry, you may need to request certified documentation. Be sure to know the professional bodies of accountants and solicitors in each jurisdiction you operate in order to check the status of whomever has certified your customer’s documents. This will help you avoid any operational hiccups down the line.

Expanding your business into new countries or regions is really exciting, but is not a simple or risk-free process. The amount of nuance and complexity involved in each jurisdiction highlights the need for assessing the financial crime and compliance risks posed in each jurisdiction where you plan to operate. Not only is it important to check for regulatory differences that may create operational challenges in different countries, but also to check areas for higher corruption, identity fraud, money laundering and terrorist financing risks in order to determine whether you need to rethink any parts of your KYC policy.

If you ever have any questions on or need any assistance with managing the financial crime regulatory landscape of a new country or jurisdiction, don’t hesitate to get in touch for more information.