A highlight from Surveillance Finance 101 with Seth Hertlein and Michael Mosier
Hey, Bankless Nation. I put out a tweet last week that said this, who can come on bank lists and explain the modern financial surveillance apparatus? FADF, FinCEN, AMLKYC, OFAC, the Blacklist, the Graylist. How does it all work? Who makes the rules? But in the space for years, I still don't understand these dark corners. That's very much how I felt coming to this episode, needing the financial surveillance 101. I knew it was an octopus, knew it was this multi -headed hydra. I had no idea how deep its roots actually go, and today we unpack this with legal experts. Seth Hirtline, he's the VP of Global Policy at Ledger, and also Michael Mosier. He actually has spent some time in the belly of the beast at both FinCEN and OFAC. Now he's on our team. He's the guy inside the house. Yeah, and now he's on Team Crypto, so he's got some insider baseball that he's going to tell us as we make sense of this. This was a really fantastic episode. I know I want to get your comments on this episode, but before we do, we've got a message from our friends and sponsors over at Ave. David, what does Ave want bankless listeners to know? Ave wants you to know that Ave V3 is here. I mean, it's been here. It's been here for six months. So why does Ave want you to know that V3 is here? Well, because apparently over a billion dollars of capital doesn't know that because it's still in Ave V2. Not only that, but there is a button for migrating your capital to Ave V3. So Ave, if you are an Ave V2 enjoyer, which you are free to because it is permissionless open source technology, they still want you. Everything gets better if all of the liquidity goes to the same place. So if you are using Ave but you are using Ave, an old version of Ave, perhaps consider joining the rest of the crew in Ave V3. It has more liquidity than Ave V2, but also some extra features as well. So power asset isolation mode and compartmentalize your risks. 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Yeah, I definitely would categorize this one as a Ryan episode. I was definitely in listening mode for the majority of this podcast. I mean, I guess that's what it's like to be a listener. You're in listening mode, so I guess telling listeners to enter listening mode, I guess doesn't help them. I learned a lot. It felt like story time, a little bit about American history. One of these episodes that we frequently do on Bankless every now and then about just like, hey, how did just the state of laws come to be in the way that they are and how are they downstream from the original American values that this country was founded on? What about the current settling of the dust around this new player in the world of, in this universe called cryptography? How is that disturbing the equilibrium and how do we need to extend American values into this new world? Because if we don't do that, then non -American values will take over. I think that's kind of the through line that I would, that will anchor Bankless listeners is that there's this new field in territory. We can have freedom enter and establish itself legally, or we can have authoritarian interests enter in that same field. And I mean, I think everyone knows which side that we want to win. We need to actually fight for that and fighting for that starts with understanding. And so I think that's why I enjoyed this episode is it helps tell that story. Yeah. And anytime David says American values, if you're outside the U S and you're like American values, just, just think of liberal values, like lowercase L values, right? Civil liberties you know, freedoms of citizens to, to express themselves and to transact without the surveillance of the government. That's really what we're talking here. And that's what's at stake more than anything. I think this episode impressed upon me that unchecked, this is just an octopus. This is just like a tree structure that will, I don't know, it's not an octopus slime mold. It will grow. Exactly. And, and it is growing and it has grown since like the 1970s. Anyway, absolutely fantastic episode guys. Stay tuned for this. But before we do, we want to tell you about our friends over at Kraken, which is our number one recommended exchange. Go check them out. Kraken pro has easily become the best crypto trading platform in the industry. The place I use to check the charts and the crypto prices. Even when I'm not looking to place a trade on Kraken pro, you'll have access to advanced charting tools, real time market data, and lightning fast trade execution, all inside their spiffy new modular interface. Kraken's new customizable modular layout lets you tailor your trading experience to suit your needs, pick and choose your favorite modules and place them anywhere you want in your screen with Kraken pro. 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All of these technologies leverage the security and decentralization of Ethereum and provide a builder experience that's intuitive, familiar and fully EVM compatible, faster transaction speeds and significantly lower gas fees. So visit arbitrum .io where you can join the community, dive into the developer docs, bridge your assets and start building your first app with Arbitrum experience web three development the way it was always meant to be secure, fast, cheap and friction free. Bankless nation. We are super excited to host two legal minds on our show today. Seth Hurtline is the vice president global head of policy at ledger and Michael Moser. He's the building ex ante. Um, he's formerly been at FinCEN and the treasury chief technical council at T analysis. So he's seen a thing or two in the space. Uh, welcome Michael. Thanks. All right guys. Uh, so what we're going to attempt to do on today's episode is give kind of the everyman explanation of financial surveillance. I feel like this is an episode. Um, maybe for me, it's, it's kind of a selfish episode because I feel like here I am in crypto and I've heard all of these, you know, four or five letter agencies. Uh, and it's recently started to impact my life with like tornado cash. I'm not entirely sure what these agencies are. I'm not entirely sure what's legal and what's not. I'm not entirely sure what powers each of these agencies actually have over my financial life. And I'm looking for like the one Oh one, I'm looking for like the, the explainer when we call it, talk about fat if, uh, and we're talking about OFAC, we're talking about whitelists and gray lists and we're talking about, you know, can I use tornado cash or not? And I can't because I'm an American. I just don't know what, uh, what every like what's going on here. So I feel like we need the one Oh one episode. So if you guys are game to do that, that's what, uh, this we're going to try to accomplish today. So I'm good. Great. Absolutely. Well, let's, um, let's kind of start domestic, uh, from sort of the U S perspective if we will, and then, then go international to kind of the rest of the world. But I want to start with maybe a working definition. So I'm thinking of this episode as like a financial surveillance one Oh one episode. And I'm wondering if you guys could sort of describe financial surveillance when I use that term, what does it mean to you? What is kind of happening behind the scenes? Who are some of the main agencies that hold the power? I'll throw this one to you first, Seth. Okay. Um, well, I, you know, I think, you know, for the purposes of this episode, let's, uh, you know, sort of carve out, you know, private sector or sort of corporate surveillance. Um, uh, let's, let's sort of limit the scope of today's conversation to, uh, to government surveillance. But I, you know, I think the, uh, you know, a good working definition could be, um, you know, information that is, uh, collected by, uh, or, uh, required to be reported to, uh, the, uh, the federal government or an agency thereof, uh, either by individuals or, um, uh, by, by service providers, intermediaries, uh, that they use for, uh, their everyday financial lives. So just to check that definition, Seth, I hear hearing two parts. One is the legally mandated reporting requirements, which if you don't do it, you get like something like fines and jail. And then there's additional information, which it would seem that the powers that be are able to just collect by their own visual, uh, mechanisms as in like it's information that's out there and they collect that information because it's available for them to collect. So that's two types of data. I mean, you know, Mike, I'd be curious your, your thoughts on this. I think it sort of converges effectively into, uh, more or less the same thing. Um, so, so maybe not a need to draw that particular distinction. Um, yeah, I think, I think it's a, I think it's a collective approach. It sort of, um, I think for two reasons, one is, you know, some of that will come into play, David, as we're, as we think about challenges, including constitutional challenges, uh, as courts have, have made a distinction between, uh, when you put your trash out, um, have you relinquished control of it? And if somebody goes through it, they just go through that through it, um, versus, uh, somebody coming in your house and going through your papers, which is the sort of genesis of the fourth amendment. Um, and I think as Seth's pointing out, we're, we're in a space here with, with web one, two, and now three, where there's tremendous amount that's, that's in this gray area between what's public and what isn't. I think even, even the concept of like what's public information at this point, um, is, is a lot more of a fine tuned, uh, fine nuanced issue, uh, including, I should say, like in a way that, that also these same government agencies that are, that are collecting it for various reasons. I mean, the, the mission of all of this, uh, and I think this is important is something when, when I was at FinCEN, we would say to the people on the Hill, making the laws too, sometimes without asking us first, uh, was that the primary mission is countering exploitation here. And so you have to factor into that, that the fact that this information out there and being collected in any form is also subject to creating greater exploitation. Uh, and that, that includes people's, you know, honeypots of people's data that gets hacked. Um, some of this recently coming up in FTX and Kroll, um, coming out of the bankruptcy. Uh, and that's something that, that I think there's the policymakers and the politicians, and then there's also the, operators out there, including at FinCEN and DOJ are saying, actually we don't need more cases and more victims. Uh, so can we protect some of this too? It's partly why we brought in privacy experts and did initiatives on zero knowledge proofs and homomorphic encryption at FinCEN. So I do think it's really important that we're, that we're talking about that very holistically. There's a lot out there. So already we're talking about FinCEN and DOJ and treasury and all these kinds of institutions. I want to get some working definitions on, but, but while we're, while we're talking about, um, this, this term, financial surveillance, all right, let's just get a grasp of what sort of data is generally being collected. And like, when is this primarily like, uh, intermediaries that are required to submit this? Because, um, as a, you know, a citizen of the US, I don't often have to, I guess I'm not like conscious of times that I'm like filing paperwork with treasury or FinCEN, but maybe I am through an intermediary and I, I just don't know it. So what sort of things are being tracked and, uh, surveilled and why? I'm happy to take that first. Yeah, I think, I mean, so it's true. You're not, although I will say there's, there's, uh, there's legislation out there, particularly in the tax space that could make you a reporter, Ryan, whether you like it or not, and whether everyone around you likes it or not. Uh, speaking of honeypots, like you may be collecting and reporting on others, but I think as, as in a traditional stand from the, from a FinCEN perspective in the Bank Secrecy Act, um, you're absolutely right. It would be intermediaries. Uh, and in fact, this goes back to some of the constitutional issues that, and the third party doctrine that Seth mentioned, but it's really transactional information. Um, and historically, in fact, the, we can talk through a little bit if you want the history of the Bank Secrecy Act, but it was exactly this. It was around, uh, reporting requirements basically, uh, coming up through the seventies. Um, and basically at the time it was purely, it was basically large cash. Um, law enforcement was seeing large cash deliveries to banks. I'm pretty sure it was organized crime. And when they would go to a bank, the bank would say, I don't know, I don't know why, um, Bugsy Siegel dropped off, $100 million. Uh, and so the other piece of that was that there was foreign Swiss banks, uh, at the time. And so this was the foreign transactions reporting piece of it too. Um, that had Swiss bank, Swiss secrecy, uh, Bank Secrecy, which is where the Bank Secrecy Act comes from. Um, and so the US would say, okay, well, we'll go to Switzerland where some of this money is getting sent from the bank that was brought in in cash. And they'd go to the Swiss and say, okay, you tell me about what's going on here. And they would say, there's nothing we can say. There's a secret, there's bank secrecy here. And so part of it was going to the US banks and saying, we need you to collect more information at the time. It was really just information of like, who's collecting it. Um, give me their, their, basically their, their bank opening information. Where do they live? What's their phone number? What's their, um, what's their occupation? What's their source of income, that sort of thing. It evolved over time to suspicious activity reports, which is much more, I think what, what you're thinking through, which is, okay, now a bank is making a determination. Seth came in the other day. He didn't just drop off a bunch of cash. He's, he's making anomalous, uh, deposits that don't make sense to us. Uh, this seems suspicious. He said he was, uh, he said he was a reporter, but he makes a million dollars a day. Um, what's going on here. And so they would file a suspicious activity report that would lay out, who is it? What did he say it came from? Um, and what is it that's suspicious about it? And I, and I should say like, you know, back in the day that would have been, he brought in a bag of cash, um, net, then it would evolve to checks and check numbers. Then it would evolve to trans, uh, wire transfers and the wire transfer information about every piece of that transaction who the correspondent bank was in the crypto space. That could be all sorts of things. What wallet address was connected? What time? Uh, if it's a, if it's a public ledger like Ethereum or Bitcoin, that might be, here's a graph of everything that that wallet touched, um, historically, uh, depending on what the platform is, they may collect the IP address, even the device identifier that Seth used to connect. Um, so there's a tremendous amount of data and metadata that could be collected in that. Can we, Michael, so can we go back to kind of the history here, uh, with you guys to make sure I understand it. So there wasn't, and we're still domestic, so we're still talking about the U S and we'll expand international after this. So, um, prior to like the 1970s, am I right to say there wasn't much financial surveillance? And then in the nine 1970s, is that, is that correct? Yeah. Yeah. Okay. So that's correct. And then in the 1970s, basically to kind of fight crime, maybe organized crime, you know, the mafia was sort of one, uh, one organization that was in the cross hairs. Uh, the U S came out with a bank secrecy act and this started sort of the, the surveillance, financial uh, apparatus. And, and so this, is this the reason basically for AML KYC, which is like, I have to be identified before I can like, you know, with a government ID, let's say before I can open a bank account. And this is the reason when I go to like transfer money or take out a large deposit from my bank, uh, the bank teller will say, what are you doing with that? Like, how are you using that money to ask these questions? I'm always like, why, why do you need to know this? Uh, you know, and it's almost couched as if, well, we want to protect you from frauds and scams and you know, maybe that's part of it. It seems like more of it is, is, is kind of this financial surveillance apparatus. So that's why I have to present an ID. That is why they are asking questions like, what are you doing with the money? And can you tell me more about, uh, the source of the funds? These are all questions. I'm, I know many bankless listeners have, have seen from their banks and it all, all emanated from this legislation from the, the 1970s and the bank secrecy act is that, is this correct? Yeah. So it started, uh, bank secrecy act was enacted in 1970. Um, and you know, at, at that time it was, uh, you know, a much smaller version, uh, you know, than it is now. Uh, right. So in 1970 I had two, uh, two core provisions, title one, title two, title one basically said banks have to, um, record, uh, transactions of their customers. They have to keep an internal log of all the transactions their customers made. Title two said the banks have to report, uh, transactions over a certain size to the treasury department. And in 1970, that, that threshold was set at, at 10 ,000 us dollars. Um, and so that created, um, one of these forms that, uh, the reports get made on called a CTR or currency transaction report. Uh, importantly, the, uh, that threshold, that $10 ,000, uh, hasn't ever been adjusted. Right. So if you, if you go back and you adjust the CTR threshold, uh, back to, to 1970 dollars, it's the equivalent of about $79 ,000 today. Wow. And what that amounts, yeah. What amounts that amounts to is, uh, you know, a gradual but constant tightening of the noose of, uh, transaction reporting of, uh, you know, the American people. Uh, and, you know, and so that's where it started. Um, you know, but, you know, both as, as sort of Mike and, and Ryan, your, your, your comments alluded to, there's this sort of creeping nature of it where it all, it just expands. Right. So first it was just the CTRs and the record keeping, you know, now it's, uh, SARs or suspicious activity ports that were added in 1992. Um, there was a, a vast expansion of the scope of the types of transactions it just really quick SARS. So suspicious activities report, is that basically incumbent on sort of the bank teller or bank employee to be like, Hey, there's something fishy about this transaction and I'm going to report it up. Is that right? Exactly. Exactly. Okay. Um, and, um, you know, so interesting stat on, on suspicious activity reports, um, somewhere North of 2 million SARS get filed with Vincent every year. Um, uh, you know, again, curious for your, for your insider take on this mic, but, uh, you know, testimony, uh, presented to Congress is that FinCEN reviews less than 1 % of the SARS that are actually filed. Um, and, you know, and, and there are, you know, way more CTRs filed than SARS filed. So, you know, most of this information goes into, uh, you know, basically just a government database and sits there waiting to be queried. Um, and, uh, you know, but so, uh, these things keep getting added on to the BSA, right? So it, it grows over time and there was a huge expansion in scope. BSA bank secrecy act. And so there was a big expansion in scope, um, as part of the Patriot act, uh, after nine 11, uh, that added a lot of new types of information that had to be gathered and reported and, uh, new intermediary types that are responsible for gathering and reporting that information.