Money Laundering: Current Law and Proposals
CRS Report for Congress
Current Law and Proposals
M. Maureen Murphy
American Law Division
In passing the International Money Laundering Abatement and Anti-Terrorist Act,
Title III of P.L. 107-56, Congress amended federal anti-money laundering laws and
ordered various studies to determine whether further legislation is needed. The anti-
money laundering laws include criminal statutes that prohibit laundering the proceeds
of specified crimes and reporting and record keeping requirements that involve criminal
and civil penalties. Since the late 1970's financial institutions have been required to
report cash transactions in excess of $10,000 and to keep records of certain foreign
transactions. Since 1996, banks have been required to report suspicious activity. Many
institutions have maintained know-your-customer procedures that profile depositors,
borrowers, or security traders on an informal basis. A regulatory proposal to formalize
this type of requirement was withdrawn in 1999 following an unprecedented number of1th
comments. International money laundering proposals before the 107 Congress and
incorporated in P.L. 107-56 call for stricter scrutiny of accounts held in the U.S. in the
name of foreign persons and institutions, including correspondent accounts held for
foreign banks. Various bills comprise the legislative history of anti-money laundering
provisions in P.L. 107-56. Among those that were passed by either the House or the
Senate are: H.R. 2975, the PATRIOT Act; S. 1510, the USA Act of 2001; and H.R.
3004. Parts of each were included in the final legislation, as were provisions that had
no counterpart in previously introduced legislation.
Anti-Money Laundering Laws. Money laundering involves concealing illegally
obtained income and recycling it until its illegal origin is completely obscured. It is addressed
primarily by four types of federal law: (1) recordkeeping and reporting requirements with civil
and criminal sanctions, (2) substantive criminal offenses, (3) procedural protections against
federal access to financial records, and (4) agreements with foreign countries with respect to
procedures and conditions under which financial records may be secured for law enforcement
1 The FDIC received 254, 394 comments with an “overwhelming majority” “strongly opposed.”
Congressional Research Service ˜ The Library of Congress
purposes. The Bank Secrecy Act of 19702 and its major component, the Currency and Foreign
Transactions Reporting Act,3 require reports and records of cash, negotiable instrument, and
foreign currency transactions and authorize the Secretary of the Treasury to prescribe regulations
to insure that adequate records are maintained of transactions that have a “high degree of
usefulness in criminal, tax, or regulatory investigations or proceedings.”4 The regulations set
civil and criminal penalties for their violation. There are also substantive federal criminal statutes
that define as offenses, laundering of monetary instruments5 and engaging in monetary
transactions in property derived from unlawful activity.6 The Right to Financial Privacy Act7
details the procedures that federal agencies, including law enforcement agencies, must use to gain
access to financial records of individuals. Treaties of mutual assistance with foreign
governments detail the conditions under which each signatory government may obtain judicial
assistance for access to financial information from institutions within the other signatory’s
The Supreme Court upheld the constitutionality of the Bank Secrecy Act in California
Bankers Association v. Schultz, 416 U.S. 21 (1974), as a valid exercise of federal power under
the commerce clause. It ruled that the Bank Secrecy Act’s recordkeeping and reporting burden
was not so onerous as to deprive the institutions of due process, did not involve an illegal search
and seizure in violation of the Fourth Amendment, and did not invade associational interests
protected by the First Amendment. Subsequently, in United States v. Miller, 425 U.S. 435
(1976), the Court held that the Fourth Amendment does not recognize an expectation of privacy
in a person’s financial records held by a bank vis-a-vis a governmental agency’s interest in
examining those records. Thereafter, the federal Right to Financial Privacy Act of 19789 was
enacted with a dual purpose: “protect[ing] the customers of financial institutions from
unwarranted intrusions into their records [by federal government authorities] while at the same
time permitting legitimate law enforcement activity.”10 It sets procedures for the federal
government’s access to bank customer records.11 One of the exceptions to these procedures states
2 12 U.S.C. §§ 1829b and 1951-1959, and 31 U.S.C. 5311-5322.
3 31 U.S.C. §§ 5311-5322.
4 12 U.S.C. § 1829b.
5 18 U.S.C. § 1956.
6 18 U.S.C. § 1957.
7 12 U.S.C. § § 3401 - 3422.
8 See Michael Abel and Bruno A. Ristau, 3 International Judicial Assistance §§ 12-4-1 and
related appendices (1990)
9 P.L. 95-630, Tit. XI, 92 Stat. 3641, 3697-3710; 12 U.S.C. §§ 3401 -2422.
10 H.Rept. 95-1383, 95th Cong., 2d Sess. 33; 1978 U.S.Code Cong. & Ad. News 9305.
11 RFPA’s application is extensive in terms of the information it covers and limited in terms of
the customers to which it applies. It defines “financial record” to include information derived
from records held by a financial institution pertaining to an individual or partnership of five or
fewer individuals. 12 U.S.C. §§ 3401(2), (4), and (5). It defines “financial institution” to mean
“any office of a bank, savings bank, card issuer..., industrial loan company, trust company,
savings association, building and loan, or homestead association (including cooperative banks),
credit union, or consumer finance institution, located in any State or territory of the United States,
that “[n]othing in this ... [law] shall authorize the withholding of financial records or information
required to be reported in accordance with any Federal statute or rule promulgated thereunder.”12
It, thus, effectively incorporates the Bank Secrecy Act into the Right to Financial Privacy Act.
Implementing Regulations. The Currency and Foreign Transactions Reporting Act
requires financial institutions and other specified businesses to maintain records of foreign
domestic financial transactions and to report to the Secretary of the Treasury certain currency
transactions in excess of $10,000. A subsequent amendment, section 1359 of the Anti-Drug13
Abuse Act of 1986, ordered the federal banking regulators to prescribe regulations “requiring
insured banks to establish and maintain procedures reasonably designed to assure and monitor
the compliance of such banks with the requirements of” the Bank Secrecy Act. Under the
implementing regulations, promulgated by the Financial Crimes Enforcement Network of the
Department of the Treasury (FinCen), the following types of reports are required: (1) Currency
Transaction Reports (CTR’s) on currency transactions of more than $10,000;14 and (2) reports
relating to the physical transportation of currency or monetary instruments from or into the
United States; regarding foreign financial accounts, or transactions with foreign financial15
agencies. The regulations also require maintaining various records in connection with purchases
of bank checks, money orders, and traveler’s checks in excess of $3,000,16 as well as copies of
records of various other transactions that the Secretary of the Treasury has determined to have a
high degree of usefulness in investigative proceedings.17
Since April, 1996,18 the regulations require that banks, depository institutions, and money19
services businesses submit Suspicious Activity Reports (SARs) of any transaction involving at
least $5,000, which the institution suspects: to include funds from illegal activities; to have been
conducted to hide funds from illegal activities or designed to evade the BSA requirements; which
have “no business or apparent lawful purpose;” or are “not the sort [of transaction] in which the
particular customer would normally be expected to engage, and the bank knows of no reasonable
explanation for the transaction after examining the available facts, including the background and
the District of Columbia, Puerto Rico, Guam, American Samoa, or the Virgin Islands.”
12 12 U.S.C. § 3412(d).
13 P.L. 99-570, 100 Stat. 3207, 3207-27; 12 U.S.C. § 1818s.
14 31 C.F.R. § 103.22.
15 12 C.F.R. §§ 103.23 -103.25.
16 31 C.F.R. § 103.29.
17 31 C.F.R. §§ 103.31 - 103.39.
18 61 Fed.Reg. 4326 (February 5, 1996). Included in the notice were implementing regulations
applicable to national banks and to state chartered member banks.12 C.F.R. §§ 21.11 and 208.20.
Promulgated soon thereafter were regulations applicable to state chartered nonmember banks;
12 C.F.R. § 353.3; federally insured credit unions (12 C.F.R. § 748.1); and federally insured
savings associations, 12 C.F.R. § 563.180.
19 31 C.F.R. §§ 103.18, 103.19. The authority to require suspicious activity reports derives from
31 U.S.C. § 5318(g), authorizing the Secretary of the Treasury to require financial institutions
to report suspicious transactions, originally enacted as section 1518 of the Housing and
Community Development Act of 1992, P.L. 102-550, 106 Stat. 3672,4059.
purpose of the transaction.”20 The banking regulators have also issued rules requiring the
institutions that they supervise to “establish and maintain procedures reasonably designed to
assure and monitor their compliance” with the Bank Secrecy Act and regulations.21 One portion
of these regulations requires that each institution develop a written compliance program with
internal controls, independent testing, training of personnel, and designating individuals to
coordinate and monitor an institution’s program. The proposed “Know Your Customer”
regulations would have expanded upon these requirement. The Money Laundering Suppression
Act of 199422 sets forth mandatory exemptions to the currency reporting requirements that include
other depository institutions and governmental entities. It authorizes the Secretary of the Treasury
to issue regulations to permit institutions to designate business customers in certain categories
as exempt from the currency reporting requirements. Under the regulations that have been issued,
institutions are authorized to exempt banks, government entities, and publicly traded companies
according to one set of procedures, and companies not publicly traded and business entities that
use cash for their payrolls according to another set of procedures which include biennial
The “Know Your Customer” Proposed Regulations. On December 7, 1998, the
federal banking regulators proposed “Know Your Customer” regulations that would have meant
regularized, systematic increased scrutiny of documentation of customer’s identity, both
individual and corporate, and possible further investigation of persons, including private banking2425
clients, who begin or maintain relationships with regulated institutions. In March 1999, the
proposals were withdrawn following an unprecedented number of negative comments citing26
increased costs and privacy concerns. Similar requirements, however, have been imposed on
various banking institutions operating internationally following money laundering investigations
20 31 C.F.R. § 103.21(a)(2).
21 52 Fed. Reg. 2858 (January 27, 1987), promulgating 12 C.F.R. § 21.21 (Office of the
Comptroller of the Currency, applicable to national banks); 12 C.F.R.§ 208.14 (subsequently, 12
C.F.R. § 208.63) (Board of Governors of the Federal Reserve System, applicable to state member
banks); 12 C.F.R. § 326.8 (Federal Deposit Insurance Corporation, applicable to federally insured
state nonmember banks); 12 C.F.R. § 563.17-7 subsequently 12 C.F.R. § 563.177(Federal Home
Loan Bank Board, the predecessor of the Office of Thrift Supervision, regulator of savings
associations, applicable to federally insured thrift institutions); and 12 C.F.R. § 742.2 (National
Credit Union Administration, applicable to federally insured credit unions).
22 P.L. 103-325, tit. 4, sec. 402 (a), 108 Stat. 2243, 31 U.S.C. § 513(d).
23 See 63 Fed. Reg. 50147 (September 21, 1998); 31 C.F.R. § 103.22.
24 Private banking includes “personalized services such as money management, financial advice,
and investment services for high net worth clients,” that “have become an increasingly important
aspect of the operations of some large, internationally active banking organizations.” Board of
Governors of the Federal Reserve System, SR 97-19 (SUP), at 1 (June 30,
1997)[http://www.federalreserve.gov/board docs/SRLETTERS/1997/SR9719.HTM]. The Know
Your Customer rules follow revelations of how the private banking services of Citibank were
employed to aid Raul Salinas de Gortari, brother of Carlos Salinas, former president of Mexico,
in transferring large sums from Mexico to Swiss banks. See U.S. General Accounting Office,
“Private Banking: Raul Salinas, Citibank, and Alleged Money Laundering,” GAO/OSI-99-1
25 63 Fed. Reg. 67516.
26 64 Fed .Reg. 14845 (March 29, 1999).
that called into question their ability to monitor international transfers as required under the
Currency and Foreign Transaction laws and regulations.27
The International Money Laundering Abatement and Anti-Terrorist Financingth
Act. The major piece of anti-money laundering legislation in the 107 Congress is Title III of
the USA-PATRIOT Act, P.L. 107-56.28 Prior to its passage on October 26, 2001, the anti-money
laundering proposals included H.R. 3004 and Title III of S. 1510, parts of which were
incorporated into H.R. 3162, which became P.L. 107-56. Of the many implementing regulations,
one of the most controversial, effective October 25, 2002, requires institutions to retain copies
of new customers’ drivers licenses for five years.29
The major provisions of the anti-money laundering portions of P.L. 107-57 authorize the
Secretary of the Treasury to impose special record keeping and reporting requirements regarding
financial transactions between domestic institutions and those in foreign jurisdictions determined
to be of primary money laundering concern. Such requirements are directed at securing
information on the identity of beneficial owners of funds being held for, transferred to, or
transferred from persons and financial institutions in the foreign jurisdiction. The Secretary is
also be empowered to place conditions on the establishment of correspondent accounts with U.S.
financial institutions by the banking organizations of such a jurisdiction. Primary money
laundering concern is to be determined by weighing such factors as the jurisdiction’s bank secrecy
laws, its banking supervision and counter-money laundering laws, and its reputation as an off-
shore banking haven. The legislation includes provisions to insulate financial institutions and
personnel from liability for reporting suspected violations of law. Also included are criminal
penalties for violating and structuring to avoid geographic targeting orders issued under the
authority of the Currency and Foreign Transactions Reporting Act. The measure also includes
a provision permitting depository institutions to include information relating to the possible
involvement of an institution-affiliated person in potentially unlawful activity in response to an
employment inquiry from another financial institution. Federal regulators are to provide
Congress with a report reconciling the penalties under the Currency and Foreign Transaction
Reporting Act with those under the enforcement provisions of the Federal Deposit Insurance Act.
Included are statements reflecting the sense of Congress on measures to be taken respecting
corruption of foreign governments and how the United States should support the activities of the
Financial Action Task Force on Money Laundering.
There are other measures to counter money laundering contained in P.L. 107-56 outside of
Title III.30 Among them are provisions that were included in both H.R. 2975, both as introduced
and as passed by the House, and in S. 1510, as passed by the Senate. Laundering the proceeds
27 These included a cease and desist order directed against the Banco Nacional de Mexico, Banka
Serfin, Banco Internacional, Bancomer, and Banco Santander in June 1998; and written
agreements, sometimes with state regulators or other Federal Reserve banks, with the Bank of
New York, the Banco Popular de Puerto Rico, and the Banco Bilbao Vizcaya Argentaria. See
Harold Adams Crawford, “Managing Reputation Risk: Bank Secrecy and Bank Privacy,” 19
Banking and Financial Services Policy Report 1 (December 2000).
28 See CRS Report RL31208, International Money Laundering Abatement and Anti-Terrorist
Financing Act of 2001, Title III of P.L. 107 - 56.
29 See 67 Fed. Reg. 48290 (July 23, 2002), implementing § 326 of Pub. L. 107-56.
30 See CRS Report RL31200, Terrorism: Section by Section Analysis of the USA PATRIOT Act.
of terrorist activity is added to the list of money laundering predicate offenses; the asset forfeiture
provisions relating to support for terrorist organizations are broadened; and there is an
authorization for the disclosure of tax information in terrorism and national security
Other Legislation. Title II of P.L. 107-134 authorizes the Internal Revenue Service to
disclose certain taxpayer information in terrorism and national security investigations. S. 2066,
S. 2475, S. 2476, and H.R. 3583, address the issue of terrorist organization abuse of charities and
Many of the anti-money laundering measures that had been introduced early in the Congress
were, in some form, incorporated into the USA PATRIOT Act. H.R. 1114, offered by Rep.
LaFalce for himself and Rep. Velazquez, and a substantially similar bill, S. 398, introduced by
Sen. Kerry, like H.R. 3886 of the 106th Congress (H.Rept. 106-728), address the problem of
international money laundering. H.R. 2922, introduced by Rep. Roukema, criminalizes the
knowing concealment of $10,000 or more in currency or monetary instruments and transportation
of it into or out of the United States.
S. 16, introduced by Sen. Daschle, contains various amendments to the substantive money
laundering provisions. One permits forfeiture of a money transmitting business operating with
a state license upon proof that the defendant knew that the business lacked such a license. Others
authorize procedures for the Attorney General to seek restraint of the U.S. assets of persons
arrested or charged in a foreign country of money laundering or Controlled Substances Act
offenses; provide authority for asserting jurisdiction over foreign persons committing a money
laundering offense involving a transaction occurring in part in the United States; extend the
coverage of the criminal money laundering statutes to foreign banks; and add various crimes to
the list of money laundering predicate offenses. Also included are amendments respecting the
prosecution and presentation of evidence in money laundering cases, encouraging financial
institutions to notify law enforcement officers of suspicious transactions, amending the
substantive money laundering criminal statute to reach conduct that involves funds commingled
with the proceeds of illegal activity, and extending criminal penalties to violations of geographic
S. 1371, introduced by Sen. Levin, adds foreign corruption offenses to the list of predicates
under the federal money laundering statutes; requires financial institutions to keep records of the
owners of interests in accounts held in the name of foreign entities; prohibits correspondent
accounts with offshore shell banks; require enhanced due diligence procedures for private banking
relations with foreign persons; provides federal court jurisdiction over foreign persons
committing money laundering offenses; provides jurisdiction over money laundering through a
foreign bank; prohibits false statements to a financial institution regarding the identity of a
customer; requires the Secretary of the Treasury to issue regulations regarding concentration
accounts held in U.S. depository institutions in the name of foreign banks; permits charging
multiple instances of money laundering in a single count of an indictment; allows seizure of funds
held in a U.S. bank’s interbank accounts for a foreign bank; and enhances procedures for law
enforcement access to bank records and to forfeit substitute property.