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Where are the Victorians when you need them? 

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Where are the Victorians when you need them? 

Here David Rimmer, Advisor to Leading Edge Forum, discusses whether we need to update our laws, regulations and institutions for the digital age, just as the Victorians did for the industrial age

Tim Berners, in this year’s annual birthday letter to the World Wide Web Foundation, controversially raised the prospect of regulating the internet. “Companies are aware of the problems and are making efforts to fix them ……. The responsibility — and sometimes burden — of making these decisions falls on companies that have been built to maximize profit more than to maximize social good. A legal or regulatory framework that accounts for social objectives may help ease those tensions”. I agree in principle but would go further, arguing that the issue goes beyond the internet per se: it is about how we bring our regulatory and legal systems in line with the digital age in general and, just as importantly, how we evolve underpinning institutions.

During the 19th Century, when industrialisation took hold, the Victorians passed a series of laws to regulate industry and to alleviate the side-effects of industrialisation.

Between 1830 and 1890 the Factory Acts regulated working hours for children, the Railway Act provided for passenger safety, the Food and Drug Act prohibited the adulteration of food and the Sanitary Act required local authorities to remove health hazards and made them responsible for sewers, water and street cleaning. These acts were contentious at the time, but nowadays we would find few proponents of child labour, trains without brakes, open sewers and bread filled with glass powder.

Today, we are experiencing comparable economic and social dislocation, this time brought on by digitization. Yet, there is no comparable stream of legislation – at best there is a trickle.

David Rimmer

David Rimmer

In his letter to the WWW Foundation Berners-Lee drew attention to how, “We’ve seen conspiracy theories trend on social media platforms, fake Twitter and Facebook accounts stoke social tensions, external actors interfere in elections, and criminals steal troves of personal data”. He could have added to the list: hate speech, trolling, breech of copyright, sexting, slander, grooming, online radicalisation, political advertising, electoral spending and social-media incitement of gang violence. If this seems like a ‘kitchen-sink’ list of issues then that’s because it is – because there are few aspects of our lives that do not have a digital dimension.

Since many of abuses of the internet are beginning to generate discussion, I want to explore a distinct area, the taxation of digital businesses, to demonstrate that we should look beyond the internet itself and consider instead the profound mismatch between our regulations and institutions, and the digital age in general.

Tudor Taxation in a Digital Age – Tax subsidies for the wealthiest companies in the world

The European Commission estimates that digital businesses pay an effective average tax rate of 9.5%, compared with 23.2% for ‘bricks-and-mortar’ firms. In order to “level the playing field”, the EU is looking to implement a tax on revenue of 2% – 6% for digital businesses with global turnover of more than €750m. The riposte from GAFA (Google, Apple, Facebook and Amazon) is that they are playing by the rules and are being unfairly singled out. This misses the point, however, which is that the rules were designed for a physical, not a digital world.

Under the today’s tax rules, digital businesses have a tax advantage in three areas.

  • Corporation tax – In 2016 Google paid £36m on UK revenue. But the latest accounts filed by Alphabet, Google’s parent company, show UK sales of more than £6bn. Apparently, sales of advertising to UK companies do not take place in the UK because Google’s legal entity that books the sale is registered in Ireland (which just happens to be a low tax location). After adverse publicity, negotiations with HMRC and appearances before parliamentary committees, Google has agreed a new approach with HMRC and will pay £130m, covering taxes since 2005. If a tax system depends on persuading companies ‘out of the goodness of their heart’ to pay more tax, then you know something is wrong, both with the tax rules and the ability of a government to exercise its jurisdiction.
  • Business rates (property taxes) – In the UK, business rates, assessed on property values, are the third biggest outgoing for many small businesses after rent and staff costs – that is unless you are an online retailer, in which you case you may pay no business rates at all. The irony here is that business rates were introduced in the 16th Century to address the side-effects of a still earlier economic revolution, the agricultural revolution. The aim of business rates was to raise money to care for the “aged, decayed and impotent” and “to place and settle to work the rogues and vagabonds”. So, 330 years later – after both an agricultural revolution and an industrial revolution – we rely on a tax designed to alleviate begging in Tudor towns.
  • State and local taxes – In the USA, for many years online retailers have been able to undercut ‘bricks-and-mortar’ retailers by not adding state and local sales tax (5% – 9% depending on the location). No in-state retailer presence, no sales tax. Recently, Amazon has had to add sales tax in many states since its Amazon Prime service depends on in-state distribution centres. Yet, even now retailers who sell via Amazon’s marketplace are not required to add sales tax.

Without doubt many consumers nowadays prefer to buy online, but surely digital businesses, some of the wealthiest companies in the world, should not receive such sizeable tax subsidies?

More generally, the example of taxation shows just how ill-fitted our regulations are for the digital age: taxes levied on property, a physical asset, when so many of today’s assets, especially software, are intangible; taxes based on demarcating the notional physical location of a transaction when in reality it happened in cyberspace; and taxes applied by national and local governments that are circumscribed by physical boundaries when digital businesses are global. Perhaps, most disturbing of all, is the way that such a fundamental aspect of how our society operates, as how we fund our public services and redistribute wealth, can be undermined with so little public challenge.

The principle which we have applied until now that what is illegal offline is also illegal online is shown to be naively inadequate. This principle would suffice if regulations had been designed for a digital world but patently they were not. The Elizabethans did not have online retailers in mind when they introduced property taxes, nor Madison the internet when he drafted the First Amendment. Likewise, our rules around electoral spending and advertising were devised for an age of mass media and our procedures governing the access of law enforcement agencies to evidence have developed over centuries under the assumption that evidence is physical as opposed to sitting on a server, a mobile phone or a hard disk.

However, new regulations alone will not be sufficient since regulations are only effective if there are institutions capable of defining and enforcing them.

New institutions to underpin new regulations

In the Victorian era, alongside legislation for industrialisation and its side-effects, came new institutions to monitor and enforce regulations. So the Factory Acts brought a Factory Inspectorate. The Health and Sanitary Acts required a uniform system of municipal boroughs which was introduced by the Municipal Corporations Act. Town councils were held to account through election by ratepayers, with transparency brought by open audit and the publication of financial accounts.

In contrast when it comes to the digital age, we have yet to evolve our institutions; neither their powers nor their composition.

The feebleness of today’s institutions in the face of digitisation is illustrated by the appearance of Mark Zuckerberg in front of various Congressional Committees. The four-minute limit for each questioner, compounded by committee members’ ignorance about Facebook, allowed Zuckerberg to obfuscate and filibuster, thereby preventing any meaningful probing. Perhaps the rigour of questioning was also impacted by the $600,000 that Facebook lobbyists had donated to 82 out of 91 committee members and their campaigns since 2013?

In the UK, the Parliamentary Home Affairs Committee has fared no better, proving itself unable in over a year to force social media companies to remove content propagating ‘neo-nazi’ ‘hate speech’. Indeed, a House of Commons review of the powers of select committees, notes that 1666 was the last time that a fine was imposed for Contempt of Parliament; while no-one has had to endure the punishment of being committed to the Prison Room of the Clock Tower, aka Big Ben, since Charles Bradlaugh refused to take an oath on the bible in 1880.

There is a mismatch not just in powers, but also in the nature of institutions themselves. Returning to the case of taxation, it is hard to see how our current institutions, based on physical jurisdiction, can easily adapt. It is a fundamental tenet that a government’s powers are limited to its own boundaries and its citizens or residents, whereas digital businesses are global, their transactions virtual and they may lack any local physical presence. Furthermore, in a virtual world the whole idea of an event happening in a specific place is a touch spurious. What counts: the location of the end customer at a particular point in time, their place of residence, their nationality, where data is stored or processed, the location of the agency that negotiated the contract for digital ads, etc.?

The General Data Protection Regulation (GDPR) is an example of how our concept of jurisdiction is straining at the seams. True, GDPR puts in place valuable protections over how EU citizens’ data is stored and used, but GDPR applies to any organisation handling EU citizen data anywhere. In practice, the EU has legislated for the rest of the world – is this right? And it is not just the EU that is trying to overcome the limits of a jurisdiction based on physical bounds.

Therefore, when it comes to devising a regulatory solution for a digital world that is global and virtual, a global aspect seems inevitable,. The challenge here is that what we need is not just new regulations or even new institutions, but a new institutional model.

Most of our current global organisations are composed of nation states. Even the Paris Climate Accord, operates under the umbrella of the United Nations. In the case of the internet, national governments will need to play a central role, not least because resilience of the internet is becoming a prime national security concern. However, so many actors within the internet ecosystem suspect the motives of government that a mere coming together of nation states is a non-starter, especially as trust and transparency are the very concerns that are driving some of the demands for regulation: why replace one untrusted party with another?. The answer would seem to be some kind of open institutional model that involves multiple stakeholders: governments, technical bodies and citizens’ representatives. Moreover, institutions would have to act in an open transparent manner that inspires trust. Again, this aligns with the nature of the internet itself which is in its essence an open network.

New institutions and even new institutional models may sound like a tall order, yet institutional innovation is nothing new. Douglass North, the Nobel prize-winning economist, and his school of New Institutional Economists have shown how the progress of humanity is above all a story of the evolution of institutions. It would seem odd – a unique exception even – if a wholly new technology were invented that transforms almost every aspect of our society but calls for no institutional evolution.

The third piece of the puzzle, beliefs. Whose freedom?

If regulations and institutions are to change, then the third piece of the puzzle is beliefs: people have to believe that new regulation and institutions are both necessary and right. Education will play an important part in shaping beliefs, as people become more aware of the impact of digitization and the ramifications for our society. But values will play a crucial part too.

Hitherto, the debate about regulation of the internet has been framed as a matter of making trade-offs between freedom and privacy. However, this is to define ‘freedom’ in a particular way and thereby to tilt the argument, “So you are against freedom?”. In reality, there are two sets of freedoms here, pitted against each other in a classic philosophical debate between “freedom to” and “freedom from”. Everyone’s ‘freedom to’ is at the expense of someone else’s ‘freedom from’. On the one hand, there is the freedom to say or post what you like online; against this stands freedom from being trolled, groomed, bullied, exploited by monopolies, or shot in a drive-by-shooting by a gang provoked by video posts on social media.

This is no different to the debates of the 19th Century when the factory owner’s freedom to run his factory however he chose was weighed against children’s freedom from having to work more than ten hours a day in a factory with unguarded machinery. At present, society seems to give more weight to a particular set of freedoms. Is this owing to how the debate has been framed? Is it because our ideas of liberty have shifted to a more libertarian basis, or because Internet and IT companies are regarded as ‘cool’, or is it simply that the issues are not sufficiently well understood, that the pace of technology change is out-running not only our ability to regulate, but also our ability as a society to comprehend the problem?

In the Victorian era, the golden age of free trade, there was an ingrained disposition towards economic laissez faire, no less than today there is a marked inclination for laissez faire in the digital realm. Nevertheless, attitudes shifted. Perhaps in 50 years we will look back aghast at the extent to which our society has provided a very limp response to online radicalization, cyber-bullying, electoral interference, hate speech and wide-scale misuse of personal data.

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Taking control of compliance: how FS institutions can keep up with the ever-changing regulatory landscape

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Taking control of compliance: how FS institutions can keep up with the ever-changing regulatory landscape 1

By Charles Southwood, Regional VP – Northern Europe and MEA at Denodo

The wide-spread digital transformation that has swept the financial services (FS) sector in recent years has brought with it a world of possibilities. As traditional financial institutions compete with a fresh wave of challenger banks and fintech startups, innovation is increasing at an unprecedented pace.

Emerging technologies – alongside the ever-evolving concept of online banking – have provided a platform in which the majority of customer interactions now take place in a digital format. The result of this is a never-ending stream of data and digital information. If used correctly, this data can help drive customer experience initiatives and shape wider business strategies, giving organisations a competitive edge.

However, before FS organisations can utilise data-driven insights, they need to ensure that they can adequately protect and secure that data, whilst also complying with mandatory regulatory requirements and governance laws.

The regulation minefield

Regulatory compliance in the FS sector is a complex field to navigate. Whether its potential financial fraud or money laundering, risk comes in many different forms. Due to their very nature – and the type of data that they hold – FS businesses are usually placed under the heaviest of scrutiny when it comes to achieving compliance and data governance, arguably held to a higher standard than those operating in any other industry.

In fact, research undertaken last month discovered that the General Data Protection Regulation (GDPR) has had a greater impact on FS organisations than any other sector. Every respondent working in finance reported that the changes made to their organisation’s cyber security strategies in the last three years were, at least to some extent, as a result of the regulation.

To make matters even more confusing, the goalpost for 100% compliance is continually moving. In fact, between 2008 and 2016, there was a 500% increase in regulatory changes in developed markets. So even when organisations think they are on the right track, they cannot afford to become complacent. The Markets in Financial Instruments Directive (MiFID II), the requirements for central clearing and the second Payment Service Directive (PSD2), are just some examples of the regulations that have forced significant changes on the banking environment in recent years.

Keeping a handle on this legal minefield is only made more challenging by the fact that many FS organisations are juggling an unimaginable amount of data. This data is often complex and of poor quality. Structured, semi-structured and unstructured, it is stored in many different places – whether that’s in data lakes, on premise or in multi-cloud environments. FS organisations can find it extremely difficult just to find out exactly what information they are storing, let alone ensure that they are meeting the many requirements laid out by industry regulations.

A secret weapon

Modern technologies, such as data virtualisation, can help FS organisations to get a handle on their data – regardless of where it is stored or what format it is in. Through a single logical view of all data across an organisation, it boosts visibility and real-time availability of data. This means that governance, security and compliance can be centralised, vastly improving control and removing the need for repeatedly moving and copying the data around the enterprise. This can have an immediate impact in terms of enabling FS organisations to avoid data proliferation and ‘shadow’ IT.

In addition to this, when a new regulation is put in place, data virtualisation provides a way to easily find and access that data, so FS organisations can respond – without having to worry about alternative versions of that data – and ensures that they remain compliant from the offset. This level of control can be reflected even down to the finest details. For example, it is possible to set up access to governance rules through which operators can easily select who has access to what information across the organisation. They can alter settings for sharing, removing silos, masking and filtering through defined, role-based data access. In terms of governance, this feature is essential, ensuring that only those who have the correct permissions to access sensitive information are able to do so.

Compliance is a requirement that will be there forever. In fact, its role is only likely to increase as law catches up with technological advancement and the regulatory landscape continues to change. For FS organisations, failure to meet the latest legal requirements could be devastating. The monetary fines – although substantial – come second to the potential reputation damage associated with non-compliance. It could be the difference between an organisation surviving and failing in today’s climate.

No one knows what is around the corner. Whilst some companies may think they are ahead of the compliance game today, that could all change with the introduction of a new regulation tomorrow. The best way to ensure future compliance is to get a handle on your data. By providing total visibility, data virtualisation is helping organisations to gain back control and win the war for compliance.

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TCI: A time of critical importance

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By Fabrice Desnos, head of Northern Europe Region, Euler Hermes, the world’s leading trade credit insurer, outlines the importance of less publicised measures for the journey ahead.

After months of lockdown, Europe is shifting towards rebuilding economies and resuming trade. Amongst the multibillion-euro stimulus packages provided by governments to businesses to help them resume their engines of growth, the cooperation between the state and private sector trade credit insurance underwriters has perhaps missed the headlines. However, this cooperation will be vital when navigating the uncertain road ahead.

Covid-19 has created a global economic crisis of unprecedented scale and speed. Consequently, we’re experiencing unprecedented levels of support from national governments. Far-reaching fiscal intervention, job retention and business interruption loan schemes are providing a lifeline for businesses that have suffered reductions in turnovers to support national lockdowns.

However, it’s becoming clear the worst is still to come. The unintended consequence of government support measures is delaying the inevitable fallout in trade and commerce. Euler Hermes is already seeing increase in claims for late payments and expects this trend to accelerate as government support measures are progressively removed.

The Covid-19 crisis will have long lasting and sometimes irreversible effects on a number of sectors. It has accelerated transformations that were already underway and had radically changed the landscape for a number of businesses. This means we are seeing a growing number of “zombie” companies, currently under life support, but whose business models are no longer adapted for the post-crisis world. All factors which add up to what is best described as a corporate insolvency “time bomb”.

The effects of the crisis are already visible. In the second quarter of 2020, 147 large companies (those with a turnover above €50 million) failed; up from 77 in the first quarter, and compared to 163 for the whole of the first half of 2019. Retail, services, energy and automotive were the most impacted sectors this year, with the hotspots in retail and services in Western Europe and North America, energy in North America, and automotive in Western Europe

We expect this trend to accelerate and predict a +35% rise in corporate insolvencies globally by the end of 2021. European economies will be among the hardest hit. For example, Spain (+41%) and Italy (+27%) will see the most significant increases – alongside the UK (+43%), which will also feel the impact of Brexit – compared to France (+25%) or Germany (+12%).

Companies are restarting trade, often providing open credit to their clients. However, there can be no credit if there is no confidence. It is increasingly difficult for companies to identify which of their clients will emerge from the crisis from those that won’t, and whether or when they will be paid. In the immediate post-lockdown period, without visibility and confidence, the risk was that inter-company credit could evaporate, placing an additional liquidity strain on the companies that depend on it. This, in turn, would significantly put at risk the speed and extent of the economic recovery.

In recent months, Euler Hermes has co-operated with government agencies, trade associations and private sector trade credit insurance underwriters to create state support for intercompany trade, notably in France, Germany, Belgium, Denmark, the Netherlands and the UK. All with the same goal: to allow companies to trade with each other in confidence.

By providing additional reinsurance capacity to the trade credit insurers, governments help them continue to provide cover to their clients at pre-crisis levels.

The beneficiaries are the thousands of businesses – clients of credit insurers and their buyers – that depend upon intercompany trade as a source of financing. Over 70% of Euler Hermes policyholders are SMEs, which are the lifeblood of our economies and major providers of jobs. These agreements are not without costs or constraints for the insurers, but the industry has chosen to place the interests of its clients and of the economy ahead of other considerations, mindful of the important role credit insurance and inter-company trade will play in the recovery.

Taking the UK as an example, trade credit insurers provide cover for more than £171billion of intercompany transactions, covering 13,000 suppliers and 650,000 buyers. The government has put in place a temporary scheme of £10billion to enable trade credit insurers, including Euler Hermes, to continue supporting businesses at risk due to the impact of coronavirus. This landmark agreement represents an important alliance between the public and private sectors to support trade and prevent the domino effect that payment defaults can create within critical supply chains.

But, as with all of the other government support measures, these schemes will not exist in the long term. It is already time for credit insurers and their clients to plan ahead, and prepare for a new normal in which the level and cost of credit risk will be heightened and where identifying the right counterparts, diversifying and insuring credit risk will be of paramount importance for businesses.

Trade credit insurance plays an understated role in the economy but is critical to its health. In normal circumstances, it tends to go unnoticed because it is doing its job. Government support schemes helped maintain confidence between companies and their customers in the immediate aftermath of the crisis.

However, as government support measures are progressively removed, this crisis will have a lasting impact. Accelerating transformations, leading to an increasing number of company restructurings and, in all likelihood, increasing the level of credit risk. To succeed in the post-crisis environment, bbusinesses have to move fast from resilience to adaptation. They have to adopt bold measures to protect their businesses against future crises (or another wave of this pandemic), minimize risk, and drive future growth. By maintaining trust to trade, with or without government support, credit insurance will have an increasing role to play in this.

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What Does the FinCEN File Leak Tell Us?

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What Does the FinCEN File Leak Tell Us? 3

By Ted Sausen, Subject Matter Expert, NICE Actimize

On September 20, 2020, just four days after the Financial Crimes Enforcement Network (FinCEN) issued a much-anticipated Advance Notice of Proposed Rulemaking, the financial industry was shaken and their stock prices saw significant declines when the markets opened on Monday. So what caused this? Buzzfeed News in cooperation with the International Consortium of Investigative Journalists (ICIJ) released what is now being tagged the FinCEN files. These files and summarized reports describe over 200,000 transactions with a total over $2 trillion USD that has been reported to FinCEN as being suspicious in nature from the time periods 1999 to 2017. Buzzfeed obtained over 2,100 Suspicious Activity Reports (SARs) and over 2,600 confidential documents financial institutions had filed with FinCEN over that span of time.

Similar such leaks have occurred previously, such as the Panama Papers in 2016 where over 11 million documents containing personal financial information on over 200,000 entities that belonged to a Panamanian law firm. This was followed up a year and a half later by the Paradise Papers in 2017. This leak contained even more documents and contained the names of more than 120,000 persons and entities. There are three factors that make the FinCEN Files leak significantly different than those mentioned. First, they are highly confidential documents leaked from a government agency. Secondly, they weren’t leaked from a single source. The leaked documents came from nearly 90 financial institutions facilitating financial transactions in more than 150 countries. Lastly, some high-profile names were released in this leak; however, the focus of this leak centered more around the transactions themselves and the financial institutions involved, not necessarily the names of individuals involved.

FinCEN Files and the Impact

What does this mean for the financial institutions? As mentioned above, many experienced a negative impact to their stocks. The next biggest impact is their reputation. Leaders of the highlighted institutions do not enjoy having potential shortcomings in their operations be exposed, nor do customers of those institutions appreciate seeing the institution managing their funds being published adversely in the media.

Where did the financial institutions go wrong? Based on the information, it is actually hard to say where they went wrong, or even ‘if’ they went wrong. Financial institutions are obligated to monitor transactional activity, both inbound and outbound, for suspicious or unusual behavior, especially those that could appear to be illicit activities related to money laundering. If such behavior is identified, the financial institution is required to complete a Suspicious Activity Report, or a SAR, and file it with FinCEN. The SAR contains all relevant information such as the parties involved, transaction(s), account(s), and details describing why the activity is deemed to be suspicious. In some cases, financial institutions will file a SAR if there is no direct suspicion; however, there also was not a logical explanation found either.

So what deems certain activities to be suspicious and how do financial institutions detect them? Most financial institutions have sophisticated solutions in place that monitor transactions over a period of time, and determine typical behavioral patterns for that client, and that client compared to their peers. If any activity falls disproportionately beyond those norms, the financial institution is notified, and an investigation is conducted. Because of the nature of this detection, incorporating multiple transactions, and comparing it to historical “norms”, it is very difficult to stop a transaction related to money laundering real-time. It is not uncommon for a transaction or series of transactions to occur and later be identified as suspicious, and a SAR is filed after the transaction has been completed.

FinCEN Files: Who’s at Fault?

Going back to my original question, was there any wrong doing? In this case, they were doing exactly what they were required to do. When suspicion was identified, SARs were filed. There are two things that are important to note. Suspicion does not equate to guilt, and individual financial institutions have a very limited view as to the overall flow of funds. They have visibility of where funds are coming from, or where they are going to; however, they don’t have an overall picture of the original source, or the final destination. The area where financial institutions may have fault is if multiple suspicions or probable guilt is found, but they fail to take appropriate action. According to Buzzfeed News, instances of transactions to or from sanctioned parties occurred, and known suspicious activity was allowed to continue after it was discovered.

Moving Forward

How do we do better? First and foremost, FinCEN needs to identify the source of the leak and fix it immediately. This is very sensitive data. Even within a financial institution, this information is only exposed to individuals with a high-level clearance on a need-to-know basis. This leak may result in relationship strains with some of the banks’ customers. Some people already have a fear of being watched or tracked, and releasing publicly that all these reports are being filed from financial institutions to the federal government won’t make that any better – especially if their financial institution was highlighted as one of those filing the most reports. Next, there has been more discussion around real-time AML. Many experts are still working on defining what that truly means, especially when some activities deal with multiple transactions over a period of time; however, there is definitely a place for certain money laundering transactions to be held in real time.

Lastly, the ability to share information between financial institutions more easily will go a long way in fighting financial crime overall. For those of you who are AML professionals, you may be thinking we already have such a mechanism in place with 314b. However, the feedback I have received is that it does not do an adequate job. It’s voluntary and getting responses to requests can be a challenge. Financial institutions need a consortium to effectively communicate with each other, while being able to exchange critical data needed for financial institutions to see the complete picture of financial transactions and all associated activities. That, combined with some type of feedback loop from law enforcement indicating which SARs are “useful” versus which are either “inadequate” or “unnecessary” will allow institutions to focus on those where criminal activity is really occurring.

We will continue to post updates as we learn more.

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