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Financial Services Law Insights and Observations

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  • Agencies encourage financial institutions to explore innovative industry approaches to BSA/AML compliance

    Financial Crimes

    On December 3, the Financial Crimes Enforcement Network (FinCEN) released a joint statement along with federal banking agencies—the Federal Reserve Board, FDIC, NCUA, and OCC (together, the “agencies”)—to encourage banks and credit unions to explore innovative approaches such as artificial intelligence, digital identity technologies, and internal financial intelligence units to combat money laundering, terrorist financing, and other illicit financial threats when safeguarding the financial system. According to the agencies, private sector innovation and the adoption of new technologies can enhance the effectiveness and efficiency of Bank Secrecy Act/anti-money laundering (BSA/AML) compliance programs. Moreover, new innovations and technologies can also enhance transaction monitoring systems. Specifically, the agencies urged banks to test innovative programs to explore the use of artificial intelligence. However, the agencies emphasized that while feedback on innovative programs may be provided, the “pilot programs in and of themselves should not subject banks to supervisory criticism even if the pilot programs ultimately prove unsuccessful. Likewise, pilot programs that expose gaps in a BSA/AML compliance program will not necessarily result in supervisory action with respect to that program.” The joint statement further specifies that the agencies will be willing to grant exceptive relief from BSA regulatory requirements to facilitate pilot programs, “provided that banks maintain the overall effectiveness of their BSA/AML compliance programs.” However, banks that maintain effective compliance programs but choose not to innovate will not be penalized or criticized.

    According to Treasury Under Secretary for Terrorism and Financial Intelligence Sigal Mandelker, “[a]s money launderers and other illicit actors constantly evolve their tactics, we want the compliance community to likewise adapt their efforts to counter these threats,” pointing to the recent use of innovative technologies to identify and report illicit financial activity related to both Iran and North Korea.

    As previously covered by InfoBytes, earlier in October the agencies provided guidance on resource sharing between banks and credit unions in order to more efficiently and effectively manage their BSA/AML obligations.

    (See also Federal Reserve Board press release, FDIC press release and FIL-79-2018, NCUA press release, and OCC press release and Bulletin 2018-44.)

    Financial Crimes Department of Treasury FinCEN Bank Secrecy Act Anti-Money Laundering Federal Reserve FDIC NCUA OCC Artificial Intelligence Bank Compliance

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  • Federal Reserve Governor, FDIC Chairman discuss fintech

    Fintech

    On November 13, Federal Reserve Governor Lael Brainard spoke at the “Fintech and New Financial Landscape” conference hosted by the Federal Reserve Bank of Philadelphia to discuss the potential implications associated with artificial intelligence (AI) innovation and advise regulators to remain diligent in their approach to understand and regulate the use of AI by financial institutions when augmenting or replacing traditional financial processes. Brainard’s prepared remarks emphasize the benefits and potential risks to bank safety and consumer protection that new AI applications pose. Noting, however, that many AI tools are proprietary and may be shielded from close scrutiny, Brainard suggested that existing regulations and supervisory guidance such as the Federal Reserve Board’s guidance on model risk management and vendor risk management could prove helpful in this space, which requires strong controls. Among other things, Brainard discussed the use of AI models to make credit decisions, and noted the risk of “opacity and explainability” challenges, which would make it difficult to explain how consumer credit decisions were determined and could “make it harder for consumers to improve their credit score by changing their behavior.” However, Brainard noted that the “AI community is responding with important advances in developing ‘explainable’ AI tools with a focus on expanding consumer access to credit.”

    Brainard also commented that “[r]egulation and supervision need to be thoughtfully designed so that they ensure risks are appropriately mitigated but do not stand in the way of responsible innovations that might expand access and convenience for consumers and small businesses or bring greater efficiency, risk detection, and accuracy.” Moreover, supervisory guidance to firms must be read in the context of the “relative risk,” and the “level of scrutiny should be commensurate with the potential risk posed by the approach, tool, model, or process used.”

    At the same conference, FDIC Chairman Jelena McWilliams also discussed the use of innovation to expand banking access to more consumers, including lower transaction costs and increases in credit availability, but emphasized that millions of “unbanked or underbanked” U.S. households do not experience these technological benefits. McWilliams stated that “[i]t will be up to institutions to leverage technology and develop products to reach these consumers.” McWilliams also discussed the FDIC’s planned Office of Innovation, which will, among other things, evaluate ways to support community banks with limited resources for fintech research and development and explore policy changes to encourage more innovation, particularly “in the areas of identity management, data quality and integrity, and data usage or analysis.” Additionally, McWilliams stated that advances in technology and data analytics will present opportunities for managing risk and change the process in which regulators handle oversight in areas such as Bank Secrecy Act/anti-money laundering compliance and consumer privacy.

    Fintech Federal Reserve Artificial Intelligence

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