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Feb.10, 2010

The Financial Crimes Enforcement Network says it will use a screening process to keep state, local and foreign law enforcement agencies from over-using their new access to financial institution search requests.

FinCEN, an arm of the U.S. Treasury Department, has published the final rule governing expanded access to 314(a) search requests today in the Federal Register. A copy of the final rule is available here.

The final rule will apply to about 20,000 financial institutions, including 17 life insurance companies, 79 trust companies and 4,793 securities broker-dealers, FinCEN officials estimate.

Subsection 314(a) of the USA PATRIOT Act of 2001 gives the Treasury secretary the authority to adopt regulations to help law enforcement agencies ask financial institutions for information relevant to terrorism and money-laundering investigations.

In 2002, FinCEN established the procedures that federal law enforcement agencies use when making 314(a) search requests.

FinCEN is not technically a law enforcement agency. Officials there wanted to be able to make 314(a) search requests. They also wanted to give state and local law enforcement agencies the ability to follow their own leads, and they had to comply with an agreement with the European Union and 25 other, single-country agreements that require the United States to offer law enforcement agencies in those jurisdictions 314(a) search access.

Non-U.S. agencies can ask for 314(a) searches only if they are in countries that have signed agreements that provide for 314(a) search access, or if they have laws offering U.S. law enforcement agencies comparable search access, FinCEN officials write.

Some commenters asked FinCEN to explain how FinCEN would monitor the 314(a) requests, including how FinCEN would determine whether a money-launder investigation is “significant.”

“FinCEN will require these law enforcement agencies to certify that each individual, entity, or organization about which the law enforcement agency is seeking information is engaged in, or is reasonably suspected based on credible evidence of engaging in, terrorist financing, or money laundering,” officials write.

“As discussed above, FinCEN will require these law enforcement agencies to certify that, in the case of money laundering, the matter is significant, and the requesting agency has been unable to locate the information sought through traditional methods of investigation,” officials write.

State, local and non-U.S. law enforcement agencies making 314(a) requests must give FinCEN a citation of the relevant statutory provisions; a description of the suspected criminal conduct; a list of the traditional methods of investigation already used; and, for money laundering cases, an explanation of why the case is significant.

Some of the factors that would affect evaluations of money-laundering cases would include:

- The seriousness and magnitude of the suspected criminal conduct.

- The dollar amount involved.

- Whether the analysis was being conducted as part of a multi-agency task force.

- Suspected criminal organization involvement.

- Multi-regional or cross-border implications.

FinCEN must review and approve all search requests proposed by state, local and non-U.S. agencies, and a federal law enforcement attaché must review requests from foreign law enforcement agencies, officials write.

Once FinCEN approves a request, it will send the request to financial institutions through the 314(a) Secure Information Sharing System.

Financial institutions can ask the state or local law enforcement agencies about those agencies’ search requests, and they can ask FinCEN itself about requests from foreign law enforcement agencies, officials write.

FinCEN says it will ask for 314(a) searches itself mainly to help with multi-agency investigations.