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RESEARCH PROJECT ON

MONEY LAUNDERING & IT ACT, 2000(CYBER LAUNDERING)

Submitted to: Mr. Kumar Gaurav (Research Associate Laws relating to Cyber & Information Technology)

Researched & Authored By: Aeishwarya Jha Roll No. 307

CHANAKYA NATIONAL LAW UNIVERSITY

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TABLE OF CONTENTS ACKNOWLEDGEMENT...3 RESEARCH OUTLINE................................................................................................................. 4 TABLE OF STATUTES / CONVENTIONS / DECLARATIONS .............................................. 5 CH. 1: AN INTRODUCTION ....................................................................................................... 7 CH. 2: THREATS OF INCREASED MONEY LAUNDERING............................................... 10 CH. 3: STAGES OF MONEY LAUNDERING ........................................................................ 13 CH. 4: INCIDENTS AND MECHANISMS OF CYBER LAUNDERING .............................. 16 CH. 5: THE INTERNATIONAL ANTI-MONEY LAUNDERING REGIME............................ 20 CH. 6: THE INDIAN POLICY TOWARDS CYBER LAUNDERING...................................... 23 CH. 7: BALANCING CONCERNS OF FINANCIAL PRIVACY...............................................27 CH 8: PROPOSED AMENDMENT TO THE INFORMATION TECHNOLOGY ACT....29 CH. 9: CONCLUSION AND SUGGESTIONS............................................................................30 BIBLIOGRAPHY..32

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ACKNOWELEDGEMENT

The research on Money Laundering & Information Technology Act Cyber Laundering is a part of Cyber Law Semester assignment. A humble gratitude is in order, for the subject faculty, Mr. Gaurav, for his pedagogic guidance. Grateful regards for the scholars whose work has been referred and are mentioned in the bibliography. This assignment is relating to emerging trends on the subject area of research.

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RESEARCH OUTLINE

A. CENTRAL ARGUMENT

The central argument of this paper is that Indian Internet Law is desperately in need of a specific provision to tackle cyber laundering. At the same time, the law must balance the right of financial privacy of citizens along with legitimate law enforcement needs. The paper proposes the required changes as an amendment to the Information Technology Act, 2000.

B. RESEARCH SCHEME

C.1 Aims and Objectives The aim of this study is to understand the concept of cyber laundering, the emerging legal trends towards this particular crime and the importance to guard against excessive invasion into the financial privacy of citizens. The paper seeks to propose regulations that promote efficient transactions over the web while preventing money laundering.

C.2 Limitations Due to paucity of space and time to some extent, the researcher limits himself only to landmark decisions of judicial bodies and has not considered the position of every country on the issues discussed. The discussion on regular money laundering as a crime is also limited.

C.3 Breakup The paper is spread across ten chapters. After the introduction, the threats of money laundering, the stages and incidents are discussed. Thereafter, the international and domestic legal regime is analysed in detail. A comparative study between Indian, US and EU regimes is provided. The paper then discusses financial privacy rights and draws out the relevant legal amendment based on the analysis done. A brief conclusion is made at the end with practical suggestions to stem money laundering, aside from the legal amendments proposed.

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TABLE OF STATUTES / CONVENTIONS / DECLARATIONS A. INTERNATIONAL INSTRUMENTS Bank Secrecy Act, 1970 (USA) EC Directive 2005/60/EC on Prevention of the Use of the Financial System for the Purpose of Money Laundering and Terrorist Financing, 2005 (EU) Electronic Communications Privacy Act, 1986 (USA) European Convention on Human Rights, 1950 (EU) Financial Action Task Force 40+9 Recommendations, 2001 Global Programme against Money-Laundering, Proceeds of Crime and the Financing of Terrorism, 1999 International Convention for the Suppression of the Financing of Terrorism, 1999 International Covenant on Civil and Political Rights, 1966 International Money Laundering Abatement and Anti-Terrorist Financing Act, 2001 (USA) Money Laundering Control Act, 1986 (USA) Money Laundering Suppression Act, 1994 (USA) Privacy Act, 1974 (USA) Right to Financial Privacy Act, 1978 (USA) United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 UN Convention against Transnational Organized Crime, 2000 UN Convention against Corruption, 2003 UN Model Law on Money Laundering and the Financing of Terrorism, 2009 Universal Declaration of Human Rights, 1948

B. DOMESTIC INSTRUMENTS The Benami Transactions (Prohibition) Act, 1988 Bankers Books Evidence (BBE) Act, 1891 Constitution of India, 1950 Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

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Information Technology Act, 2000 Information Technology Amendment Act, 2008 Indian Penal Code, 1860 Indian Evidence Act, 1872 Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 Prevention of Money Laundering Act, 2002 The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 Prevention of Money Laundering Act (Amendment Bill), 2011 Securities and Exchange Board of India, Master Circular on Anti Money Laundering (AML) Standards/Combating Financing of Terrorism (CFT) Obligations, 2008 Reserve Bank of India Act, 1934 Reserve Bank of India, Master Circular on Maintenance of Deposit Accounts, 2012

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CH. 1: AN INTRODUCTION ...and I will give him a white pebble, and on that pebble a new name written which no one knows except the one receiving it.1

This quote from the Holy Bible best sums up the state of the internet and the predicament faced by law enforcement agencies. The absence of identification is the biggest benefit for users, but also the biggest headache for security agencies. This is seen none more so than in the area of money laundering, which has now moved to the internet, utilizing it as a mode for preparation, execution and completion. The problem of money laundering has indeed reached epic proportions. The International Monetary Fund estimates that two to five percent of the global economy involves laundered money, while the Financial Action Task Force on Money Laundering, an intergovernmental body set up to combat the problem, simply states that it is impossible to produce a reliable estimate of the amount of money laundered.2 Generally, it has been characterized to be the worlds third-largest business. What is undisputable is that the stakes are high, not only because of where the funds may be applied, but also because of the magnitude of the funds involved.

A. WHAT IS CYBER LAUNDERING

Money laundering generally refers to the process of concealing the source of money that has been obtained by illicit means.3 It takes its name because it correctly describes what takes place in the process illegal, or dirty money is put through a cycle of transactions, or washed, so that it comes out the other end as legal, or clean, money. The origin of the term relates to mafia members in the US buying Laundromats, so that they could mix their illegal money with the legal revenue earned by the Laundromats. With the advent of the internet and its increasing use for financial transactions and business, money laundering has obtained a new field of operation. Thus, cyber laundering may be
1 2

The Holy Bible, Revelation, 2:17 (Book, Chapter: Verse). United Nations Office on Drugs and Crime, Money Laundering and Globalization, available at https://www.unodc.org/unodc/en/money-laundering/globalization.html 3 Rob McCusker, Underground Banking: Legitimate Remittance Network or Money Laundering System? , Crime And Justice International 21(89), 4 (2005).

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described as the process of utilizing Internet-based electronic wire transfer methods, such as Internet banking or online gambling, in furtherance of disguising the source of illegally obtained money.4 In essence, the object remains the same i.e. to legitimise illegal funds and hide their source; however, the classification of an act as cyber laundering rests on the internet being a mode of preparation, execution or conclusion of that activity.

B. UNDERSTANDING E-CASH

As the financial world moved online, the demand for efficient transactions led to the establishment of electronic cash or simply E-cash. It plays the same role in the virtual world as physical currency does in the real world and is hence sometimes termed as the greenback of the Internet. The terms digital cash, digital currency and cyber-currency are all synonyms for such an electronic medium of exchange which has no intrinsic value, being merely binary code (series of 0s and 1s) in itself, and the barest trace of physical existence. It comes in three forms: three forms: (i) operating within traditional financial institutions, such as banks; (ii) operating in a tokenized system and; (iii) operating as a hybrid system. The most common use of e-cash is through debit and credit cards, though stored value cards are also gaining in popularity. E-cash allows actual assets to be transferred through digital communications in the form of individually identified representations of bills and coins. This is similar to the serial numbers found on physical currency5 For launderers, the key element of e-cash is its practically anonymity. Financial security of internet users means that e-cash transactions require total privacy. This is indicated by secure codes or SSL locks that spring into action, whenever one engages in any e-commerce; particularly, the use of debit or credit cards online. Money launderers exploit this characteristic of internet commerce in order to disguise their transactions.

Stephen Jeffrey Weaver, Modern Day Money Laundering: Does the Solution Exist in An Expansive System of Monitoring & Record Keeping Regulations? 24 Ann. Rev. Banking & Fin. L. 443, 444 (2005). 5 DANIEL C. LYNCH & LESLIE LUNDQUIST, DIGITAL MONEY: THE NEW AREA OF INTERNET COMMERCE 99 (1996)

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C. LEGAL CROSSROADS

Money laundering itself has a massive social aspect and cyber laundering adds to the predicament. The application of laws dealing with traditional money laundering to cyber laundering activities is fraught with difficulty. The fear of money laundering only ends up increasing regulatory frameworks which, in turn, affect the ability to conduct convenient, efficient and relatively private financial transactions. In this sense, cyber laundering regulations walk a tight-rope between individual financial privacy rights and legitimate law enforcement interests. The paper seeks to unravel this complex web of rights and duties.

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CH. 2: THREATS OF INCREASED MONEY LAUNDERING

Before delving into the depths of the issues at hand, it is worthwhile to consider why increased money laundering presents is such a matter of concern. It is seen that money laundering is not per se a dangerous crime; however, it position as a resource for numerous other dangerous crimes, lends it its classification as a dangerous crime. It is an integral part of the crime itself, whether that ultimate crime is a blue-collar one, such as drug trafficking or a whitecollar one, such as embezzlement.

A. THREATS DUE TO MONEY LAUNDERING IN WHATEVER FORM Each of the threats discussed here may arise due to money laundering in the physical form or due to cyber laundering: (i) Terrorism Financing: The war against terrorism is a matter of global importance. One facet of this war is to destroy the support systems that aid in execution of a terrorist attack. This would include the financing of terror groups, which is usually done using laundered money. The scale of the problem came to light immediately after the September 11, 2001, attack on the World Trade Centres in New York. Terrorists themselves are not too concerned about disguising the origin of the money, but rather on concealing its destination and purpose. The widespread availability of the internet provides a convenient method for terrorist organizations to transfer funds, both illegal and legal, to cells across the globe.6 (ii) Fuel for Organized Crime: Laundered money becomes a fuel for organized crime like drug trafficking. With most countries having strict laws on drug control, money collected from the sale of drugs will always need to be laundered. Large-scale drug traffickers face a unique problem of managing large sums of cash, much of it in small bills obtained from the payments made by customers. For example, in Operation Polar Cap in 1980, US agents acting as distributors for the Medellin cartel had to handle approximately $1.5 million a week in small denomination currency.7 Such large and steady cash flows are rare among legitimate businesses.

Stephen I. Landman, Funding Bin Ladens Avatar: A Proposal for the Regulation of Virtual Hawalas , 35 Wm. Mitchell L. Rev. 5159, 5169-5171 (2009). 7 PETER REUTER, CHASING DIRTY MONEY: THE FIGHT AGAINST MONEY LAUNDERING 41 (2004)

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It is no surprise then that the bulk of the current antimoney laundering8 regime was constructed primarily to control drug trafficking by choking up funds and profits. (iii) Corruption: Corrupt public officials have to launder bribes, kick-backs and siphoned public funds. In India, the famous Koda Scandal, involving money laundered by the former Jharkhand Chief Minister, Madhu Koda, is a prime example of such threats.9 This leads to reduced government credibility and affects the quality of public services. Embezzlement, fraud, and tax evasion proceeds are other avenues for money laundering. (iv) Negative Impact on the Economy of the Country: Money-laundering may hut a nations economy by changing the demand for cash, making interest and exchange rates more volatile, and by causing high inflation. (v) Loss of foreign investment: Investments, and particularly foreign investments, which aid in long-term economic growth of a nation, rely on stable conditions and good governance. These are absent in nations with weak anti-money laundering regimes. Investors demand probity and integrity from financial institutions that deal with their money and would hence shun an institution found to assist in money laundering.

B. HEIGHTENED THREATS DUE TO CYBER LAUNDERING

Although the process of cyber laundering mirrors the traditional methods of physical money laundering, it presents certain other heightened threats as compared to the latter: (i) Efficiency: Cyber laundering avoids the problems associated with physically transferring large sums of money, and allows instant transfers of money from and to anywhere in the world. As there is no requirement to physically transport the money, the launderer can rely on fewer cronies and has less opportunities of being caught.10 (ii) Anonymity: Cyber laundering removes the need for execution or completion of transactions in person. In turn, the anonymity of the internet makes it near impossible for governments to reconstruct the transactions in an audit trail. Digital cash is for all practical purposes,

8 9

Herein after referred as, AML. News Report, Madhu Koda and Associates Laundered a Staggering Rs. 3356 crore , INDIA TODAY, February 20, 2012, New Delhi. 10 Wendy J. Weimer, Cyberlaundering: An International Cache for Microchip Money, 13 DePaul Bus. L.J. 199, 220 (2001).

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unconditionally untraceable, as the blinding carried out by the users computer makes it impossible to link payments to the payer.11

11

Jonathan P. Straub, The Prevention of E-Money Laundering: Tracking the Elusive Audit Trail, 25 Suffolk Transnatl L. Rev. 515, 522 (2002).

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CH. 3: STAGES OF MONEY LAUNDERING Money laundering is usually described in terms of three sequential stages placement, layering, and integration. It need not be that all three stages occur, or that they can be separated from each other. Nevertheless, this three-stage classification is a useful decomposition of what is otherwise a complex process.

A. STAGES IN TRADITIONAL MONEY LAUNDERING

(i)

Placement: This is the basic stage where the launderer places the illegal funds into the financial system. This could be done by depositing it into a bank, or introducing it into the retail economy through the purchase of goods (usually of high value), property, or business assets.12 In case of bank deposits, the trend is to use a process called smurfing, i.e. breaking up of large amounts of cash into smaller amounts so that the transactions fall below the reporting requirements of a given jurisdiction. Thus, in USA, banks must report domestic transactions over $10,000 and international transactions over $5,000 to the Treasury Department and so transactions will be structured accordingly. 13 In India, deposits over Rs. 50,000/- are noted by requiring presentation of the PAN card; thus launderers would keep their deposits to lesser than this amount.14Thus, the aim of this stage is to remove the illegal money from the area of acquisition, and escape detection by the authorities in doing so.

(ii)

Layering: This is the process by which the source and ownership of the funds are sought to be concealed. This is usually done by undertaking multiple and complex financial transactions, such as international wire transfers or placing funds in an overseas bank. The aim here is to distance the funds from their criminal origin and make it difficult for anyone to trace the trail of the funds. Due to the large

12

JAMES RICHARDS, TRANSNATIONAL CRIMINAL ORGANIZATIONS, CYBERCRIME, & MONEY LAUNDERING: A HANDBOOK FOR LAW ENFORCEMENTS OFFICERS, AUDITORS, & FINANCIAL INVESTIGATORS 46-47 (1999). 13 Bank Secrecy Act (BSA), FinCen Form 104. 14 15 Reserve Bank of India, Master Circular on Maintenance of Deposit Accounts, RBI/2012-13/53, July 2, 2012, 2.4.

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number of transactions undertaken each day, authorities are unlikely to catch a launderer at this stage of the process.15 (iii) Integration: This stage involves the reintroduction of funds back into the legitimate economy. This could be done by various means that bring legitimacy to the funds most common are creating anonymous dummy corporations or investing in real estate. Once this is complete, the launderer has cleansed (laundered) his ill-gotten money.16

B. THE IDEAL CONDITIONS FOR EXECUTION OF THE STAGES IN CYBER LAUNDERING

(i)

Placement: At this stage, cyber launderers benefit from the anonymity of internet transactions and e-Cash. The transactions are thus not face-to-face or even physical. This allows them to go by undetected, by avoiding the strict reporting requirements imposed on traditional financial institutions.

(ii)

Layering: It is at this stage that the advantages of the internet truly can be realized, over traditional forms of layering. The launderer must find an institution, such as an online gambling site will permit him to set up an account without physical verification or documentary identification. This makes it extraordinarily difficult for enforcement authorities to trace the account back to the cyber launderer. Furthermore, the internet provides near instantaneous transfer of funds which can occur anywhere in the world, as the only requirement is to possess an internet connection. Online bank transfers are particularly difficult to trace back, particularly where there is use of disguised IPs etc.17 The deeper this dirty money gets into the international banking system, the more difficult it becomes to identify its origin.18

(iii)

Integration: Integration is made easier by cyber laundering. For instance, a launderer could setup an online gambling site and transfer illegal funds,

15

ANGELA VENG MEI LEONG, THE DISRUPTION OF INTERNATIONAL ORGANISED CRIME 33 (2007)

7.
16 17

Supra, note 10, Straub, 519 Supra, note 11, RICHARDS 49. 18 Supra, note 2, UNODC Report.

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mixing it with the proceeds of the site itself. The funds then appear legitimate to authorities tracing the audit trail of the profits. In fact, the launderer could use legitimate bankers and lawyers at this stage, without too much hassle. Other modes of integration include using debit cards issued by offshore banks to make purchases online, fake loans from offshore companies, or simply executing a traditional integration measure, like purchase of real estate, online.19

19

Steven Philippsohn, The Dangers of New Technology Laundering on the Internet, 5 J. Money Laundering Control 87 (2001).

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CH. 4: INCIDENTS AND MECHANISMS OF CYBER LAUNDERING

The methods by which money may be laundered are varied and can range in sophistication. Earlier, laundering money was a physical effort of actually transporting currency, which has been eliminated by cyber laundering. It was limited by the creative ability to manipulate the physical world. The classic methods were flying hard cash out of one country and depositing it in a foreign bank, bribing a bank teller, discretely purchasing property, or for smurfs to deposit small cash amounts at a bank to avoid reporting requirements.20 These methods have now evolved with the advent of cyber laundering.

The goal of any mechanism applied by the launderer is to convert one liquid asset into another asset, which is preferably in a less liquid form, so as to make identification of the source of the acquisition as difficult as possible. It should be noted that money is only a means of exchange rather than an end it itself. This is known as the dispositional imperative of money i.e. it is useless to keep as a product in itself, and needs to be disposed to yield any benefit to the holder.21 The mechanisms of money laundering focus on this characteristic of money in seeking to legitimise illegally obtained money. At the same time, it is this characteristic that provides enforcement authorities with effective leverage to entrap transgressors, since the points of disposal are where the offenders may be caught. The mechanisms and incidents of cyber laundering should be understood in this light.

A. TRADITIONAL MECHANISMS THAT MAY BE APPLIED FOR CYBER LAUNDERING (i) Wire Transfers: This is akin to the physical transfers of money that would happen earlier. However, wire transfers i.e. electronic transfers allow swift and nearly risk free conduit for moving money between countries. Considering that on average 700,000 wire transfers occur daily in any major jurisdiction like the US, UK or India, moving billions of dollars, illicit wire transfers are easily hidden. This is often employed for bulk-cash movements across jurisdictions and into banks where the regulations are not so strict.
20 21

Sarah N. Welling, Smurfs, Money Laundering and the Federal Criminal Law, 41 Fla. L. Rev. 287, 290 (1989) Brett Watson, The Global Response To Money Laundering, available http://www.aic.gov.au/events/aic%20upcoming%20events/2002/~/media/conferences/2002-ml/part1.pdf

at

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(ii) Cash intensive business: Any business typically involved in receiving large cash inflows will use its accounts to deposit both legitimate and criminally derived cash, claiming all of it as legitimate earnings. A service-based business is best suited for such a mechanism of laundering. Modern versions of this comprise online based cash intensive businesses like data-entry, translations and software support that are even often be entirely fictitious. The source of the fund is difficult to trace when payment is made in cash.22 (iii)Casinos: These are themselves a cash intensive business, and were a hotbed for money laundering activity earlier. The individual would walk in to a casino with cash and buy chips, play for a while and then cash in his chips, for which he would be issued a cheque. He could deposit this into his bank account, and claim it as gambling winnings, for which he would then pay a negligible (as compared to his total illegal earning) amount of tax23. Presently, the advent of online casinos has made this mechanism all the more viable for launderers. There is no need to take physical cash anywhere, E cash may be spent at the online casinos and then winnings can be converted into legitimate physical currency. (iv) Trade-based laundering: In trade based transactions, laundering could be done by undervaluing or over-valuing invoices in order to disguise the movement of illegal funds. Online trade based laundering operates in a similar manner and invoices can be quickly created and easily tampered with in order to adjust illegal amounts. (v) Round Tripping: In this mechanism of laundering, money would be deposited in a controlled foreign corporation offshore, such as in a tax haven with minimum regulatory requirements, and then shipped back as foreign direct investments, exempt from taxation.24 Jurisdictions which allow related transactions to be done electronically, simply make the task simpler for the launderers. (vi) Shell companies / Black Salaries / Fictitious Loans: Shell companies are meant to disguise the true beneficial owner of the assets. Black salaries are either where salaries are paid to employees who dont actually exist, or illegal funds are used to pay parts of the salaries of

22 23

Supra, note 9, Weimer, 222. Financial Action Task Force, Report on the Vulnerabilities of Casinos and the Gaming Sector, 1 February 2012, available at http://www.fatfgafi.org/media/fatf/documents/reports/Vulnerabilities%20of%20Casinos%20and%20Gaming%20Se ctor.pdf 24 See the definition given by the Supreme Court of India in Vodafone International Holdings B.V. v. Union of India , (2012) 6 SCC 369, 105.

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employees.25 Fictitious loans are advanced to launderers who repay them using their illegal funds. (vii) Bank Capture: Launderers would simply buy controlling interest in a bank and use it at their whims for their illegalities. The advent of online banks and payment portals, like PayPal and DigiCash mean that such a mechanism can easily be moved online. (viii) Internet Banking: This works in a similar manner to the physical world. It is generally an avenue for smurfing activities by launderers. They undertake small transactions through internet banks and avoid reporting requirements. (ix) Real Estate and Online Auctions: The advent of online shopping through MagicBricks26, 99 Acres, and other such property portals has meant that money laundering through the purchase of real estate can now move online. Online auctions are another mechanism, by creating fake auctions, or grossly overstating the price or worth of goods.

B. ONLINE GAMES: MONEY LAUNDERING AS THE LATEST CHEAT CODE Online games are arguably the most notorious space for money laundering online that is available today. Multiplayer online role-playing games, called Massive Multi-player Online Role Playing Games (MMORPG), like Linden Labs Second Life and Blizzard Entertainments World of Warcraft, offer a nearly foolproof way to disguise and move money across jurisdictions. Most of these games have various opportunities for money based transactions, such as buying of virtual property, or gaming props etc. For instance, Second Life, which has approximately 21.3 million account holders globally, uses a virtual currency called Linden dollars for its transactions. Although the exchange rate fluctuates, on average, approximately 100 Linden dollars is equivalent to 1 US$. The virtual account is tied up to an actual bank account, and the daily turnover generated by the game is estimated at almost 1.5 million US$. Earlier, digital earnings had to be converted into real currency directly through the use of virtual currency arbitrage trading websites, which was at least a small opportunity for regulators to keep an eye on transactions. But in May 2006 Entropia Universe introduced real world ATM cards to its 250,000 players, allowing them to instantly withdraw hard cash from their virtual world
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Kim-Kwang Raymond Choo and Russell G. Smith, Criminal Exploitation of Online Systems by Organised Crime Groups, Asian journal of criminology 3(1) 37-59, 46 (2008) 26 See http://www.magicbricks.com/; http://www.99acres.com/

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assets. This was followed by other game developers and now the entire process is wholly outside the ambit of authorities.27

27

Angela Irwin & Jill Slay, Detecting Money Laundering and Terrorism Financing Activity in Second Life and World of Warcraft, International Cyber Resilience Conference (2010), available at http://ro.ecu.edu.au/cgi/viewcontent.cgi?article=1004&context=icr

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CH. 5: THE INTERNATIONAL ANTI-MONEY LAUNDERING REGIME Money laundering is usually a transnational activity and hence, the anti-money laundering regime has to be at an international level. It comes as little surprise then that the United Nations has been at the helm of the anti-money laundering regime and ensured coordinate efforts by member States to tackle this menace. International efforts to curb moneylaundering reflect a strategy aimed at attacking the economic power of criminals in order to weaken them by preventing their benefiting or using illicit proceeds and, equally, at forestalling the nefarious effects of the criminal economy. A. EFFORTS OF THE UNITED NATIONS AGAINST MONEY LAUNDERING28 The main objective was set up by the General Assembly at its Twentieth Special Session, 8-10 June, 1998, for all member States on the drug trafficking problem.29 The issue was seen as a key element of the drug trafficking, as the finance and profits of this activity were obtained through money laundering. Several international conventions followed, which are discussed briefly below: a. United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 (Vienna Convention) this was the first international legal instrument to embody the money-laundering aspect and the first instrument which criminalised money laundering. Article 3(v)(b)(i) and Article 3(v)(b)(ii) criminalize the financing of any of the offences covered under the Convention and attempts to disguise the source of funds used for such financing. The elements of the crime are essentially (a) knowingly engaging in a financial transaction; (b) with the proceeds of a crime; (c) for the purpose of concealing or disguising the illicit origin of the property. As this Convention was formulated in 1988, there is no specific provision dealing with cyber laundering, though this definition is quite wide to encompass cyber laundering used to finance or disguise the profits obtained by drug trafficking.

28

See also United Nations Office on Drugs and Crime, An Overview of the UN Conventions and other International Standards concerning Anti-Money Laundering and Countering the Financing of Terrorism, (2007), available at http://www.imolin.org/pdf/imolin/Overview%20Update_0107.pdf 29 UNGA Special Session on Drugs, Twentieth Special Session, Resolution A/S-20/14.

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b. UN Convention against Transnational Organized Crime, 2000 (Palermo Convention) The Palermo Convention was the second international instrument that considered the issue of money laundering and criminalized several facets of the offence. It widened the scope of the money-laundering offence by applying it to the proceeds of all serious crimes, and not just drug trafficking. Article 6 criminalizes the laundering of proceeds of crime by requiring State parties to adopt legislative and other measures against conversion or transfer of property, knowing that such property is the proceeds of a crime, for the purpose of concealing or disguising the illicit origin of such property. Another interesting provision is Article 19 of the Convention, which provides for joint investigation by States for cross border offences. This provision is of significance in the context of cyber laundering, which always has an international element.

c. UN Convention against Corruption, 2003 (UNCOC) The UNCOC creates a comprehensive domestic supervisory and regulatory regime for banks and non-banking financial institutions, as well as any entities particularly susceptible to being involved in money-laundering. It also calls for the establishment of Financial Intelligence Units (FIUs).30 Article 23 deals with the laundering of the proceeds of an act of corruption. The provision is similar to Article 6 of the Palermo Convention, except that it relates to money laundering concerned with offences of corruption alone. Article 24 criminalizes concealment of property when then person involved knows that such property is the result of any of the offences under the UNCOC. This would cover the position of intermediaries that help carry out transactions, including over the internet. Article 27 criminalizes the participation and attempt to launder money as well, while Article 28 clarifies that knowledge, intent or purpose, established from objective circumstances is required to prove the offence. The UNCOC also has a specific provision covering cyber laundering. Article 14(3) deals with preventive measures against money laundering and requires financial institutions and money remitters ton include on forms for the electronic transfer of funds and related messages, certain accurate and meaningful information on the originator, maintain such information throughout the payment chain, and apply enhanced scrutiny to transfers of funds that do not contain complete

30

UNCOC, Article 58.

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information on the originator. This provision is an excellent trend to dealing with the problem of cyber laundering, but attempting to eliminate anonymity of the transacting parties.

B. FINANCIAL ACTION TASK FORCE (FATF) In 1989, an intergovernmental body, known as the Financial Action Task Force (FATF) was setup to combat money laundering and provide an international coordinated response to it. The main objective of the FATF is the development of and promotion of policies, both at national and international levels, to combat money laundering and terrorist financing. The FATFs efforts brought anti-money laundering guidelines into prominence globally. In 1990, the FATF issued a set of 40 Recommendations for improving national legal systems, enhancing the role of the financial sector and increasing cooperation. These were revised first in 1996 and again in 2003 to reflect changes in money laundering techniques, including cyber laundering. These measures are considered the international measure for anti-money laundering programs and benchmark standard around the world. Following the 9/11 terror attack, 9 special recommendations that deal specifically with terrorist financing were prepared and the collation is now called the 40+9 Recommendations. Recommendation 1 requires that countries criminalise money laundering based on the Vienna and Palermo Conventions. The effort must be to include the widest range of predicate offences. Recommendation 20 requires development of modern and secure techniques of money management that are less vulnerable to cyber laundering. The benefits of implementing the FATF Recommendations have been recognized by the Parliamentary Standing Committee, in its report on the Prevention of Money Laundering Act (Amendment Bill), 201131, including securing a more transparent and stable financial system that is more attractive to foreign investors and preventing terrorist financing. After India prepared an Action Plan for changes in legislations, regulatory and institutional framework to confirm to FATF standards, it was finally granted membership in the FATF in June 2010.

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Seehttp://www.prsindia.org/uploads/media/Money%20Laundering/SCR%20Prevention%20of%20Money%20Lau ndering%20Bill%202011.pdf

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CH. 6: THE INDIAN POLICY TOWARDS CYBER LAUNDERING The concept of money laundering in India can be traced back to the infamous Hawala transactions that ruled the decades prior to liberalization and continue to do so. The hawala mechanism was traditional money laundering setups that physically transported hard cash overseas or helped convert black money to white money domestically. It remains popular even today, especially for many organized crime syndicates. Over the decades, a number of Acts sought to curb the menace of money laundering, though they were not specifically named with that objective.32 It took until 2002 for Parliament to pass a specific legislation. Needless to say, the issue of cyber laundering remained unattended, though as will be seen, a wide interpretation may be given to bring it within the framework of the legislations. A. PREVENTION OF MONEY LAUNDERING ACT, 2002 (AS AMENDED IN 201233 )

The central objective of the Act was to provide for confiscation of property derived from, or involved in, money laundering. Interestingly, the term money laundering is not specifically defined in the Act. Section 3, as the charging section, specifies money laundering as directly or indirectly attempting to indulge or actually being involved in any process or activity connected with the proceeds of crime and projecting it as untainted property. In Hari Narayan Rai v. Union of India, the Jharkhand High Court held that the term laundering as used in the Section comprises involvement in any process or activity by which the illicit money is being projected as untainted. The relevant date was not the date of acquisition of illicit money but the date on which it was being processed for projecting it untainted.34

32

See for instance, Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; The Benami Transactions (Prohibition) Act, 1988; The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 33 Prevention of Money-laundering (Amendment) Act, 2012 (No. 2 of 2013) w.e.f. 15.02.2013 34 B.A. No. 6829 of 2010, 4th February, 2011 (Jharkhand HC) : MANU/JH/0302/2011.

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With the advent of amendment to PMLA, In the Schedule to the principal Act, (i) for Part A, the following Part stands substituted, namely:

PARAGRAPH 22: OFFENCES UNDER THE INFORMATION TECHNOLOGY ACT, 2000

72. Penalty for breach of confidentiality and privacy. 75. Act to apply for offence or contravention committed outside India.

These aforesaid provisions from Information Technology act, amendment are treated as scheduled offences under PMLA in accordance with section 2 (y) of PMLA, 2002. The FATF did point out several concerns with the PMLA, when India sought membership initially in 2006, including certain concerns relating to electronic transactions:

a) Commodities market out of the ambit of PMLA. b) Designated Non-Financial Businesses and Professions, aside from casinos are also not subjected to PMLA. c) The identification and verification of beneficial ownership of legal persons is not required, which is significant in cases of cyber laundering. d) Ineffective sanctions regime for non-compliance with reporting and recording obligations.

B. INFORMATION TECHNOLOGY ACT, 2000 (AS AMENDED IN 2008)

One would expect that this comprehensive legislation ought to have a provision to deal with cyber laundering. But that is not so. In fact, the existing provisions themselves may be insufficient to prosecute a launderer under the IT Act based on even a wide interpretation. The Act does extend to any offence committed outside India by any person and thus recognizes the cross-border nature of offences. The words computer and computer system, in Section 2(i) and 2(l) respectively, have been also widely defined to include all electronic devices with data processing capability.

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Section 43 deals with the civil offence of theft of data and damage to computers, computer system. There is no real scope to seek damages for cyber laundering activities under this section. Section 43-A is a more relevant provision, making a body corporate that is negligent in implementing reasonable security practices and thereby causes wrongful loss or gain to any person, liable to pay damages by way of compensation to the person so affected. The practices extend to protection of sensitive data, which includes password, details of bank accounts or card details, medical records etc.35 Under the Rules, in the event of an information security breach, the body corporate shall be required to demonstrate that they have implemented security control measures as per the documented information security program.36 These provisions and Rules thus cover civil liability and corporate responsibility.

The cyber crimes covered under the Act are quite limited. Section 65 criminalizes tampering with source documents. Section 66 covers several computer related offences, including criminal liability for data theft covered under Section 43, when done dishonestly and fraudulently. The other offences covered from Section 66A to Section 66F, introduced by the Amendment in 2008, are sending offensive messages, dishonestly receiving stolen computer resource, electronic signature or other identity theft, cheating by impersonation using a computer resource, violations of privacy and cyber terrorism respectively. All these offences are cognizable and non-bailable. In the penultimate chapter, the researcher proposes Section 66G to deal with cyber laundering specifically.

The IT Act has also brought about relevant amendments into other legislations like the Indian Penal Code, 1860, the Indian Evidence Act, 1872 etc. to ensure that they are updated to deal with cyber crimes. Some of the relevant provisions to deal with cyber laundering include the admissibility of electronic records as evidence as provided for in Section 65B of the Evidence Act. The Bankers Books Evidence (BBE) Act, 1891, was amended to allow as evidence cash books, account-books etc., stored as electro-magnetic data in any storage device. Finally, the Reserve Bank of India Act, 1934, has been amended in Section 58(2) to include a sub-clause relating to the regulation of funds transfer through electronic means between banks (i.e.
35

Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011. 36 Ibid.

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transactions like RTGS and NEFT) to facilitate such wire transfers and ensure legal admissibility of documents and records. This is a significant development in the context of wire transfers, although it remains to be seen whether the provision is extended to require documents relating to online electronic transfers of money, over internet banking etc.

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CH. 7: BALANCING CONCERNS OF FINANCIAL PRIVACY

Before proceeding to propose the relevant changes to Indian law to effectively tackle cyber laundering, it would be worthwhile to briefly consider the impact of any changes on the right of financial privacy of citizens. The internet offers complete anonymity and financial privacy, as discussed above. However, this allows it to become a money launderers paradise. At the same time, removal of anonymity on the internet would allow every activity of a user to be tracked by authorities. This has the potential for abuse and may lead to a surveillance state. The fear of money laundering only serves to increase banking regulations which, in turn, affect everyones ability to conduct convenient, efficient and relatively private financial transactions. Evidently, privacy rights, internet security and prevention of money laundering have a significant societal aspect. Thus any provision suggested must be a balance between individual financial privacy rights and legitimate law enforcement interests. A. PRIVACY AS REGARDS CORRESPONDENCE

The right to privacy has itself been recognized by the Supreme Court to be part of the Right to Life, guaranteed under Article 21 of the Constitution.37 Data privacy itself was not particularly considered in these decisions, which dealt with personal details.

B. FINANCIAL PRIVACY

Financial privacy specifically refers to an evolving relationship between technology and the legal right to, or at least, the public expectation of privacy of ones financial data. 38 This right has not specifically been declared to be part of the right to privacy in India. The IT Act has substantial emphasis on data privacy and information security, but Section 69 empowers the Government or certain agencies, to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource, subject to compliance with the
37 38

Kharak Singh v. State of U.P., AIR 1963 SC 1295; R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632. BENJAMIN E. ROBINSON, FINANCIAL PRIVACY & ELECTRONIC COMMERCE: WHO'S IN MY BUSINESS 1-2 (2000)

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procedure laid down. It may be exercised for security of the state and preventing incitement to the commission of any cognizable offence, both of which may be read broadly to encompass cyber laundering and terrorist financing using the internet.

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CH 8: PROPOSED AMENDMENT TO THE INFORMATION TECHNOLOGY ACT TO COVER CYBER LAUNDERING AS A DISTINCT OFFENCE

The following amendment is proposed and is self-explanatory: Section 66G. Cyber Laundering Whoever commits intentionally, by use of a computer, computer system or communication device, a) the conversion or transfer of property, knowing that such property is the proceeds or profits of an illegal activity, for the purpose of concealing the illegal origin of such property; b) the concealment or disguise of the true nature, source, disposition, movement, or rights with respect to property, knowing that such property is proceeds or profits of an illegal activity; c) the acquisition, possession or use of property, knowing, at the time of receipt, that such property is proceeds or profits of an illegal activity; d) participates, abets, conspires to commit, or attempts to commit any of the above; is guilty of the offence of cyber laundering and shall be punished in accordance with the provisions of this Act and in the Prevention of Money Laundering Act, 2002.

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CH. 9: CONCLUSION AND SUGGESTIONS

This paper set out to consider whether the internet had the potential to become a money launderers paradise, and found that indeed it did. Indeed, cyber laundering is the latest technique of money laundering, that is presenting serious difficulties for law enforcement authorities. The application of present law dealing with traditional methods of money laundering to cyber laundering is fraught with difficulty.39 The mechanisms and incidents of cyber laundering are becoming more complex by the day. Globally, nearly two billion individuals have Internet access, and that number is only going to rise in the coming years. 40 There is clearly a need for major changes in law and practice to stem this problem. This paper has not delved into practical changes, as these are largely outside the researchers expertise. Briefly, some PRACTICAL MEASURES that may be explored include: a. Enforcing regulatory reporting requirements as against internet banks and businesses; b. Mandating KYC and identity verification for online transactions; c. Using better anti-money laundering software to catch suspicious transactions; d. Blacklisting money launders from online transactions to promote responsible use of digital cash transactions.

What this paper has considered are the LEGAL PROVISIONS to tackle cyber laundering and it has found that provisions of Indian law are woefully inadequate. Therefore, it has suggested a comprehensive provision, proposed Section 66G in the IT Act, 2000, to tackle cyber laundering as a distinct offence. In doing so, it has been mindful of the delicate balance between financial privacy rights and legitimate law enforcement interests. It asserts that prohibiting or secretly monitoring E-cash transactions on the grounds that such transactions are more difficult to trace is not sufficient justification by authorities. The State cannot turn private agencies into its surveillance agents. Equally, there is the need avoid a social panic approach, which only serves to drive legislation on rhetoric and ill-guided activism in order to be seen to be doing
39 40

Hannah Purkey, The Art of Money Laundering, 22 Fla. J. Intl L. 111, 115 (2010) Internet World Stats, Internet Usage Statistics: The Internet Big Picture World Internet Users and Population Stats (2010), http://www.internetworldstats.com/stats.htm.

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something rather than by an objective understanding of its impact. A situation where the cost of anti-money laundering regimes escalate above the benefits they bring is to be avoided. The proposed Section 66G strikes that balance by providing the authorities with teeth while allowing individuals to keep their rights.

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BIBLIOGRAPHY

a. Books Referred 1. DANIEL C. LYNCH & LESLIE LUNDQUIST, DIGITAL MONEY: THE NEW AREA OF INTERNET COMMERCE (1ST ED. 1996) 2. PETER REUTER, CHASING DIRTY MONEY: THE FIGHT AGAINST MONEY LAUNDERING (1ST REV. ED. 2004) 3. JAMES RICHARDS, TRANSNATIONAL CRIMINAL ORGANIZATIONS,

CYBERCRIME, & MONEY LAUNDERING: A HANDBOOK FOR LAW ENFORCEMENTS OFFICERS, AUDITORS, & FINANCIAL INVESTIGATORS (1ST ED. 1999) 4. ANGELA VENG MEI LEONG, THE DISRUPTION OF INTERNATIONAL ORGANISED CRIME (2ND ED. 2007) 5. HEBA SHAMS, LEGAL GLOBALIZATION: MONEY LAUNDERING LAW AND OTHER CASES (2004) 6. BENJAMIN E. ROBINSON, FINANCIAL PRIVACY & ELECTRONIC COMMERCE: WHO'S IN MY BUSINESS (2ND ED. 2000) 7. FRED H. CATE, FINANCIAL PRIVACY, CONSUMER PROSPERITY, AND THE PUBLIC GOOD (2ND ED. 2003) b. Miscellaneous Reports and other References 1. United Nations Office on Drugs and Crime, Money Laundering and Globalization, available at https://www.unodc.org/unodc/en/money-laundering/globalization.html 2. United Nations Office on Drugs and Crime, An Overview of the UN Conventions and other International Standards concerning Anti-Money Laundering and Countering the Financing of Terrorism, (2007), available at

http://www.imolin.org/pdf/imolin/Overview%20Update_0107.pdf 3. United Nations Office on Drugs and Crime, Model Law, available at

http://www.unodc.org/documents/money-laundering/Model_Provisions_2009_Final.pdf 4. United Nations Office on Drugs and Crime, Objectives of the Global Programme against Money Laundering, available at http://www.unodc.org/unodc/en/money-laundering/programmeobjectives.html

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5. Financial Action Task Force, Report on the Vulnerabilities of Casinos and the Gaming Sector, 1 February 2012. 6. Reserve Bank of India, Master Circular on Maintenance of Deposit Accounts, RBI/201213/53, July 2, 2012. 7. Securities and Exchange Board of India, Master Circular on Anti Money Laundering (AML) Standards/Combating Financing of Terrorism (CFT) Obligations, ISD/AML/CIR-1/2008, December 19, 2008. 8. UN General Assembly Special Session on Drugs, Twentieth Special Session, Resolution A/S20/14.

c. Articles Referred 1. Rob McCusker, Underground Banking: Legitimate Remittance Network or Money Laundering System?, Crime And Justice International 21(89), 4 (2005) 2. Stephen Jeffrey Weaver, Modern Day Money Laundering: Does the Solution Exist in An Expansive System of Monitoring & Record Keeping Regulations?, 24 Ann. Rev. Banking & Fin. L. 443, 444 (2005) 3. Stephen I. Landman, Funding Bin Ladens Avatar: A Proposal for the Regulation of Virtual Hawalas, 35 Wm. Mitchell L. Rev. 5159, 5169-5171 (2009). 4. News Report, Madhu Koda and Associates Laundered a Staggering Rs. 3356 crore, India Today, February 20, 2012, New Delhi 5. Wendy J. Weimer, Cyberlaundering: An International Cache for Microchip Money, 13 DePaul Bus. L.J. 199, 220 (2001). 6. Jonathan P. Straub, The Prevention of E-Money Laundering: Tracking the Elusive Audit Trail, 25 Suffolk Transnatl L. Rev. 515, 522 (2002). 7. Brett Watson, The Global Response To Money Laundering, available at

http://www.aic.gov.au/events/aic%20upcoming%20events/2002/~/media/conferences/2002ml/part1.pdf 8. Kim-Kwang Raymond Choo and Russell G. Smith, Criminal Exploitation of Online Systems by Organised Crime Groups, Asian journal of criminology 3(1) 37-59, 46 (2008).

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9. Angela Irwin & Jill Slay, Detecting Money Laundering and Terrorism Financing Activity in Second Life and World of Warcraft, International Cyber Resilience Conference (2010), available at http://ro.ecu.edu.au/cgi/viewcontent.cgi?article=1004&context=icr 10. M. Sanders, Money Laundering through Gold Farming and Virtual Goods, (2009) available at http://www.box.net/shared/nikjjgng3m 11. Hannah Purkey, The Art of Money Laundering, 22 Fla. J. Intl L. 111, 115 (2010) 12. Steven Philippsohn, The Dangers of New Technology Laundering on the Internet, 5 J. Money Laundering Control 87 (2001). 13. Sarah N. Welling, Smurfs, Money Laundering and the Federal Criminal Law, 41 Fla. L. Rev. 287, 290 (1989)

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