September 07, 2010
Is KYC DOA? The tribulations of trying to know your customer
Based on recent nightly news coverage, it appears that armed robbery has entered a new era of "brazenness," as robbers seem to commit their crimes without the cover of a disguise, despite the growing omnipresence of security cameras. I seem to recall that in the good old days of TV westerns, the robbers always wore disguises—at least they covered their faces with bandanas. Unfortunately, in the world of cybercrime, the disguises are still a basic part of the uniform as bad actors go about the business of laundering money, financing terrorists, and committing general computer crimes.
Increasingly in the wake of the Sept. 11 attacks, the responsibility for wrestling with detecting criminal financial activity lies with banks, subject to the provisions of Section 326 of the Patriot Act. In essence, the Patriot Act extended the earlier requirements of the Bank Secrecy Act to place financial institutions in the center of a process to know more and more about their account holders. Generally described as the "Know Your Customer" (or KYC) provisions of the act, Section 326 requires financial institutions (now broadly defined to include everything from traditional banks to gambling casinos) to gather, record, and report a great deal of specific information about their business and consumer customers.
Customers have reacted to this heightened information-gathering process with some frustration, yet it is simply the consequence of the global village in which we now live. The standards for such information gathering are cataloged in the Customer Identification Program (CIP) requirements of the Patriot Act, but many institutions, in an effort to protect their bank's financial welfare and avoid criticism from regulators about adhering to the letter of the law only, have extended their programs into the area of customer due diligence (CDD). CDD embraces broader information gathering that may frequently seem intrusive to the customer. For example, CDD may ask customers to describe the nature of transactions flowing through their accounts so that the bank can establish a risk rating for the accounts. However, in today's reality of global cybercrime, have we come to the point where even extended CDD may not be sufficient?
The emergence of third parties in the payments arena
This question is accentuated by the increasing roles of third parties in the payments system. Many third parties are legitimately engaged in providing services and technology support to businesses and banks alike in order to facilitate a more efficient use of the payments system. For example, some companies offer ACH or electronic check origination services to smaller businesses that cannot easily afford the acquisition of in-house systems to accomplish certain payment functions. While it is reasonable to assume that a bank can perform due diligence reviews on such third parties, history has been a harsh teacher in revealing that the third party (the bank's customer) can be well intentioned, but some of the companies they provide services to (the customer's customer) may be less honorable. Consequently, we talk in the trade of the fact that banks must now know their customer's customer (KYCC).
It turns out that this is not an easy thing to do. Nor is it easy to tell their customer's customer how to do it. For instance, many of the customer's customers may be startup companies, entrepreneurs pursuing the dream, or relatively small niche businesses. Some such firms start legitimately and intentionally act innocently until such time that they are positioned to commit significant fraud. In other words, the robbery suspects in cyber space do wear bandanas and they do disguise themselves so that no one can make an easy determination in advance as to their trustworthiness. In fact, they do it so well that we must ask, "Is KYC dead on arrival?" in this modern world of payments.
It is increasingly apparent that the answer is, "No, KYC isn't dead, but neither is it enough." A good KYC plan is better than no plan and is needed to comply with the Patriot Act, but we cannot possibly expect such a plan to be foolproof. Instead, we need to anticipate the possibility of a rogue player and complement KYC with other controls. Ultimately, this means that noncard transaction processing systems need to begin to adopt many of the practices used in card systems, including data forensics to detect and address potentially fraudulent behavior before it happens or as soon after it happens as possible.
In addition, it may be time for the industry, working with regulators, to examine the growing importance and risk profiles of nonbank entities engaged in the payments space. Most of today's fraudsters fall outside of the regulatory purview of bank supervisors and examiners, leaving the field to agencies such as the Federal Trade Commission. In 1850, the Pinkerton Agency was formed to assist the government in finding and arresting bank robbers. Perhaps we need a modern-day cyber version of the Pinkertons, armed with powerful networked computers to reach out and oversee the operations of a bank's customer's customer on behalf of regulators and law enforcement bodies everywhere. At any rate, a fresh look at this topic couldn't hurt.
By Richard Oliver, Executive Vice President of the Atlanta Fed and Director of the Retail Payments Risk Forum
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