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Suspicious Activity Reporting Issues Confronting the Money Services Business Industry

By George R. Brown V Merle, Brown & Nakamura, P.C. for the National Money Transmitters Association

Money service businesses have been required to file SARs for over five years now. Even before this requirement, many MSBs were already filing SARs on a voluntary basis. Money transmitters are a large subset of MSBs that are heavily regulated on both the state and federal levels.

Due to the nature of this business and the lack of federal licensing requirements, onerous and detailed state regulations have developed that require money transmitters to obtain state issued licenses before they are permitted to engage in business in a state. Almost every state has such a licensing requirement. In this state licensing process, the money transmitters are almost always required to demonstrate, among many other things, a compliance program that ensures SAR filings will be made when required and all other federal compliance issues are addressed.

One method of engaging in business as a money transmitter is to become an authorized representative of another money transmitter. Basically, an authorized representative sells another money transmitter?s product (money transfer services) on behalf of the other money transmitter. In most cases, the authorized representative does not have a license and is specifically permitted by state law to engage in business as a money transmitter without a license because they are acting as an authorized representative of another money transmitter who in fact possesses the required state licensing. When a licensed money transmitter engages in business through authorized representatives, the licensee is required to demonstrate to the state licensing authorities that the authorized representatives are fully integrated into the money transmitter?s SAR compliance program and are independently meeting their SAR compliance requirements as well.

Unlicensed money transmitters (businesses engaged in the money transmission business without a license where such licensing is required and without having established a valid authorized representative relationship) face no such requirements from state level regulators and are a significant SAR compliance risk. Unlicensed money transmitters face none of the state licensing barriers to entering business. Unlicensed money transmitters are a substantial compliance risk to our financial system and our society in general.

Certainly, within the wide array of licensed money transmitters there are varying degrees of SAR compliance risk. But the fact that a money transmitter possesses a state issued license is a significant indicator of reduced compliance risk.

Different types of state-licensed money transmitters face different types of SAR compliance issues. Medium-to-large state licensed money transmitters have sophisticated software compliance systems used to detect patterns of suspicious activity in their enormous databases of transmission-related information. These are almost exclusively back office systems as the medium to large state licensed money transmitters have very little face-to-face contact with customers. The customer interaction is almost exclusively conducted by the authorized representative of the licensed money transmitter. Accordingly, it is entirely appropriate and expected that the authorized representative will be required to, and will, file SARs concerning suspicious activity that is apparent due to the particularities of any specific transaction.

Authorized representatives are often not engaged in money transmission as their main line of business, so they will not usually be as sophisticated as the licensed money transmitter which they represent. This lack of sophistication will not stop them from recognizing suspicious activity in the interaction with the customer. Suspicious activity that occurs in the actual transaction is largely obvious and apparent.

Smaller state-licensed money transmitters face a different set of problems. They are often burdened with detecting both the face-to-face related suspicious activity and the more nuanced suspicious activity detectable through transaction review after the face-to-face customer exchange is concluded. After a certain level of volume is achieved, back office suspicious activity detection will be very difficult without either a sophisticated compliance software system or substantial resources to devote to the project. This is a significant problem for small money transmitters as the cost and difficulty of obtaining and maintaining a compliance software system may be too great for their business to bear. This would be a fair issue for a bank or state or federal regulator to focus on in reviewing a small licensed money transmitter?s business. Is its SAR compliance system sufficient given the volume of money transmissions it conducts?

Language and cultural concerns are another set of issues that affect a money transmitter?s SAR compliance. Small-to-medium sized money transmitters? businesses, and authorized delegates of large money transmitters, are often largely oriented towards various ethnic communities within the United States that are sending money to friends, businesses, and family members back in their home countries. These ethnic orientations permeate the entire money transmission business and result in customers, employees, officers, and owners being largely from the ethnic community served by the particular money transmitter. English is either a second language or not spoken at all in most circumstances. This does not stop the state-licensed money transmitter?s SAR compliance. But the language barrier can make the compliance more difficult to achieve since translation can become a cost and a burden. Cultural issues are also a concern. Many of these ethnic communities are from cultures that instill a fear of government and third parties being involved in personal finances and families. This fear and mistrust can create misperceptions and misunderstandings. The ethnic oriented money transmitters are faced with a particularly difficult task of discerning between normal fear and mistrust and customers or other persons with more nefarious purposes or intents. One way of alleviating some of this problem would be to conduct community outreach in the specific languages involved and to provide SAR forms and compliance materials in the specific languages as well.

This brings up the issue of defensive SAR filings. Out of fear of punishment for failing to file an SAR when required, some have come to believe that it is better to err on the side of caution and file an SAR in much less clear circumstances than others. This deters the law enforcement value of SARs in general as it will result in many filings where there is no actual illegal activity even though an SAR may be called for because there is some aspect of the transaction creating suspicion and causing the need for a filing. Money transmitters know and take pride in knowing they are assisting law enforcement when filing SARs. A redesigned form could possibly allow the money transmitter to rate the transaction as to the level of suspiciousness. This would hopefully assist law enforcement in allocating resources appropriately.

For several years now, money transmitters have faced significant difficulties finding, obtaining, and keeping bank accounts that are necessary to keep their businesses efficient, profitable, and transparent. This problem affects all money transmitters, both large and small. Most in the industry have come to believe that the reason for the difficulties with bank relationships arise from a misperception that all money transmitters represent an unacceptable compliance risk for the bank.

This misperception is an unfair and unjust overgeneralization that fails to take into account the particular money transmitter involved. The most significant attribute that will distinguish a high risk money transmitter from a low risk money transmitter is whether the particular money transmitter in question is licensed by the state regulatory authorities where that money transmitter is engaged in business.

State-licensed money transmitters are well intentioned, highly regulated businesses that are well aware of their SAR compliance requirements and how those requirements affect their particular circumstances. Money transmitters are deeply indebted to FinCEN for their continuing commitment to the industry. Money transmitters look forward to new opportunities to work together in the future with FinCEN to create more useful SAR filings for law enforcement while possibly alleviating the banking crisis that has affected the industry.

Excerpted from SAR Activity Review Issue 12, page

First published on 10/01/2007

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