American Banker
Monday, June 17, 2013
http://www.americanbanker.com/bankthink/the-fincen-whistleblowers-1059910-1.html
Regarding surveillance, the world may never have a Fincen whistleblower in the same way that we have an NSA or CIA whistleblower. This is because the Fincen bureau conducts all of its surveillance activity out in the open and in plain sight, probably for its effect as a deterrent. Fincen even recruits banks and other agent financial institutions to participate in the direct surveillance that make serious and consequential judgment calls along the way.
Blatant and stated upfront, the unimpeded surveillance of Americans’ financial activity is Fincen's core mission. So, nothing much to blow the whistle on there.
Since the establishment of Fincen in 1990 to act as the designated administrator of the 1970 Bank Secrecy Act, two generations of educated Americans, including some smart attorneys, have been conditioned to think of money laundering as a real and legitimate category of crime. Eradication of privacy is the goal and manipulation of the semantic crime debate is the tool.
In typical crime-speak fashion, it is therefore possible to have telephone crime and email crime, because persons committing illegal acts can use telephone and email channels to execute their deeds. Perhaps this is why the U.S. administration and the NSA don't see much wrong with PRISM. In their minds, violating the privacy rights of the 99.99% is justified if it ultimately results in the identification of the evil 0.01%.
In true Machiavellian spirit that glorifies instrumentality in statebuilding, "the ends justify the means," especially when it comes to using our money as an identity tracking device. In order to rule successfully, deceit and violence may be necessary for the stabilization of power, to eliminate political rivals, to coerce resistant populations, and to purge the community of other individuals with strong character.
The larger debate around privacy is not just a matter of perception. Nor is it about striking the proper balance, as many have implied. The debate is about zero privacy or zero surveillance as the default and who defines the variations from the default.
Since the available cryptography and technical tools of today permit near absolutes on each side of the privacy-surveillance spectrum, each advancement from one side elicits an equally strong reaction from the other side. More pervasive and aggressive surveillance techniques at the governmental level encourage greater general use of advanced cryptography tools among average citizens. Last week’s headlines only served to spread public awareness of these privacy tools.
It shouldn't have to be this way. We shouldn't always have to deploy the strongest available encryption techniques against the surveilling class. The surveilling class should simply stop watching us.
As shameful as the existence of PRISM is, and it is monumentally shameful for a free society, it doesn't even compare to the unprecedented level of financial surveillance the world is on the verge of witnessing. With FATCA nearing its debut, the IRS goes global, and with FATF, the OECD develops policies to assist in standardizing worldwide enforcement of financial surveillance, ensuring there is nowhere left to hide. These are the agents of our "financial" PRISM.
As banks and credit card companies become more complicit in the surveillance, digital currencies with proper mixing services such as bitcoin become a viable option for preserving some transactional privacy, even if identification is required for its initial acquisition from licensed money transmitters.
At a conference last week, the U.S. Institute of Peace and the International Centre for Missing & Exploited Children trotted out Bitcoin and the anonymized web browser Tor as whipping boys in a gross and misguided attempt to paint certain technologies as indirectly enabling immoral behavior. The theme of the conference was brainstorming possible ways to reconcile the opportunities of innovative financial technologies with the needs and concerns of law enforcement.
Some type of back door, or exception, for law enforcement must certainly be possible – to protect the children, you know. Although virtual currency exchange endpoints can be regulated, two representatives of the Bitcoin Foundation clearly stated the obvious limitations in altering the Bitcoin transaction protocol itself. Also, for the life of me, I cannot imagine how the Tor Project could compromise itself in an acceptable way. It would be like asking a toaster not to toast.
In her opening remarks at the conference, Fincen Director Jennifer Shasky Calvery cited the two wildly different lenses through which observers see the virtual currency issue. Generally, it's thwarting financial innovation versus establishing a clear and safe regulatory environment. She happens to be correct about this framework.
However, upon leaving the director's U.S.-centric bias, two other lenses emerge – U.S. interests versus rest-of-the-world interests. And, this is where we find our elusive whistleblower.
The Fincen whistleblower is other sovereign nations and they are starting to speak.
In April, the Dutch Minister of Finance and president of the Board of Governors of the European Stability Mechanism, Jeroen Dijsselbloem, answered questions from his country’s parliament regarding bitcoin. (His remarks were later translated by a Dutch member of the Bitcoin community.)
When asked if "the activities as performed by Bitcoin fall under the Financial Supervision Act or is this a private activity," Minister Dijsselbloem responded, "Anyone is free to develop and/or use alternative (digital) products, as long as it does not conflict with the Dutch law, such as the law on gambling."
He continued: "The current understanding is that Bitcoin is not electronic money as meant in the Financial Supervision Act, partly because Bitcoins are not issued in exchange for received money and they do not represent a claim on the issuer. Because of this, Bitcoin does not meet at least two of the four requirements set out in the law. Also, Bitcoin is not in any other way a financial product as meant by the law. (Mediation in) the purchase or sale of Bitcoins is not a financial service either, so the Financial Supervision Act does not apply."
Many educated and developed countries don't immediately see every product as something to track and don't necessarily view financial privacy as a negative. Indeed, prior to immense and unparalleled pressure from the U.S., bank secrecy and client confidentiality had been a proud heritage in countries such as Switzerland, Austria, and Liechtenstein.
But will the world listen to the up and coming Fincen whistleblowers? They should. Either willingly or begrudgingly, the world has embarked on a path of greater and greater transparency in a bargained exchange for the warm embrace of security. But, the ends do not justify the means in that grand tradeoff. A world where privacy isn't sacrificed and all human transactions aren't tracked is not only possible, but imperative. The alternative will be far worse than you can imagine.
The more developed a country is, the more surveillance there is. There ought to be a check on what big banks, financial lenders and other such entities are doing.
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