Privacy is under attack, while worrying legislative proposals on this issue come from all sides.
The principle of non-interference implies that the bank should not interfere in the affairs of its customers. This results in autonomy for the client to operate their bank account and dispose of their assets as they wish, at least that is how it is understood from a theoretical point of view.
Firstly, the bank remains subject to a supervisory obligation and, in the event of non-compliance, can be held liable in this regard. Therefore, it is difficult for banking establishments to determine in which cases it is necessary to increase vigilance and what limits should not be exceeded in order not to exceed the duty of non-interference.
Common sense would dictate that the customer’s account can operate freely, unless the bank identifies glaring anomalies in its use: remittances of checks that go unpaid, account that often exceeds a possible overdraft authorization, etc. Apart from these easily identifiable cases, customers should, in principle, be able to freely manage their bank accounts. Unfortunately, exceptions to this principle tend to become the rule.
Anti-Money Laundering (AML) Provisions Take Priority Over Everything Else
Under the pretext of fighting terrorist financing and money laundering, compliance ayatollahs do everything possible to know everything about each client. Based on the provisions of articles L.561-1 et seq. of the Monetary and Financial Code, the set of “LCBFT” regulations constitutes a formidable arsenal of control of freedoms.
Thus, under the pretext of fighting terrorism (a Sunday activity that fortunately only affects a small percentage of people), banks are developing more and more tools aimed at creating a customer profile and blocking any transaction that goes beyond the internal scope framework of “normal” use pending justification from the account holder. The Prudential Control and Resolution Authority (ACPR) also welcomes the implementation of automated tools by banks in the context of the (increasingly numerous) declarations submitted to Tracfin.
Greater Interference for a Hard-to-see Benefit
However, for each banking user, faced with these increasingly invasive questions about privacy and the freedom to enjoy the fruits of labor, how many terrorists and potential criminals are arrested each year?
To date, it does not appear that the implementation of these measures has resulted in a significant drop in the number of frauds, as fraudsters constantly develop new and more effective schemes. Fraudsters benefit from the right to an account that requires the opening of a bank account in favor of any person domiciled in France, so that certain dishonest companies can continue to exist, certainly in a degraded way, even if their bank historic has decided to close its accounts.
It is very likely that in the coming years increasingly restrictive texts and obligations will continue to appear that will weigh on “ordinary” users of the banking sector, while criminals continue to play with processes over which they will still have control in the long term.
Are Cryptocurrencies the Solution?
When Bitcoin first came out, large corporations, and other personal data-hungry GAFAMs, regulation was not yet as important as it is today. Currently, it is becoming increasingly difficult to evade KYC and other demands from digital asset providers who must undergo the same regulatory developments as more traditional players.
It is likely that, while it remains a formidable store of value and a good way to fight rising inflation, Bitcoin will not be able to continue fulfilling its role as true electronic cash for long.
By Audy Castaneda
