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District Court Rejects DOI's Ban on Tribes' Re-Petitioning for Federal Recognition [February 26, 2020]
From the Document: "On January 10, 2020, the U.S. District Court for the Western District of Washington held that the Department of the Interior's (DOI) 2015 Final Rule revising 25 C.F.R. Part 83 to ban Indian groups from re-petitioning after DOI denied federal recognition was 'arbitrary and capricious.' The case, 'Chinook Indian Nation v. Bernhardt', involved DOI's 'Procedures for Federal Acknowledgment of Indian Tribes' (Part 83 Process), that govern how an Indian group may obtain federal recognition, enter into a government-to-government relationship with the United States, and become eligible for services and benefits provided to federally recognized Indian tribes and their members. The case addresses the repetitioning ban, which has been in the regulations since 1994, as well as an exception to that ban that was included in a 2014 Proposed Rule, but omitted in final rules promulgated in 2015. This Legal Sidebar provides background on federal recognition of Indian tribes; analyzes the court's holding; and discusses considerations for Congress, including recent legislation addressing the federal recognition administrative process."
Library of Congress. Congressional Research Service
Murphy, M. Maureen
2020-02-26
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Financial Services and Cybersecurity: The Federal Role [Updated March 23, 2016]
From the Summary: "'Federal banking regulators' (the Office of the Comptroller of the Currency, the Federal Reserve, and the Federal Deposit Insurance Corporation) are required to promulgate safety and soundness standards for all federally insured depository institutions to protect the stability of the nation's banking system. Some of these standards pertain to cybersecurity issues, including information security, data breaches, and destruction or theft of business records. The 'federal securities regulators' (the Securities and Exchange Commission and the Commodity Futures Trading Commission) have asserted authority over various aspects of cybersecurity in securities markets and those who trade in them. [...] In addition, overseeing the securities industry are certain 'self-regulatory organizations'--private organizations empowered by law or regulation to create and enforce industry rules, including those covering cybersecurity. [...] The 'Consumer Financial Protection Bureau' issues and enforces federal consumer financial protection regulations, and it has certain consumer financial protection supervisory authority over depositories and consumer finance companies not otherwise federally regulated. The Federal Trade Commission has asserted authority over certain consumer finance operations of nonfinancial companies such as retailers and hotels. The basic authority that the federal regulators use to establish cybersecurity standards emanates from the organic legislation that established them and delineated the scope of their authority and functions. [...] Complementing the laws and regulations, the regulators issue guidance under a variety of names, such as policy statements, supervision and regulatory letters, financial institution letters, bulletins, and other forms of communications. [...] This report focuses on federal laws, regulations, and executive orders."
Library of Congress. Congressional Research Service
Weiss, N. Eric; Murphy, M. Maureen
2016-03-23
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Executive Order 13438: Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq [January 14, 2011]
From the Summary: "On July 17, 2007, President Bush issued Executive Order 13438, Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq. It is the latest in a series of executive orders based on the national emergency declared by President Bush with respect to 'the unusual and extraordinary threat to the national security and foreign policy of the United States posed by obstacles to the orderly reconstruction of Iraq, the restoration and maintenance of peace and security in that country, and the development of political, administrative and economic institutions in Iraq.' Regulations implementing this Executive Order were issued on September 13, 2010. The President's authority to issue the executive order stems from the International Emergency Economic Powers Act of 1977 (IEEPA). The executive order covers financial transactions and authorizes property controls with respect to three categories of persons: (1) individuals or entities determined 'to have committed, or to pose a significant risk, of committing an act or acts of violence that have the purpose or effect of ... threatening the peace or stability of Iraq ...'; (2) individuals or entities determined 'to have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of, such an act or acts of violence or any person whose property and interests in property are blocked pursuant to this order ...'; and (3) individuals and entities determined 'to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order....'"
Library of Congress. Congressional Research Service
Murphy, M. Maureen
2011-01-14
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SCOTUS: Yakama Treaty Travel Right Preempts Washington State's Fuels Tax [April 5, 2019]
From the Document: "On March 19, 2019, the Supreme Court, in 'Washington State Dep't of Licensing v. Cougar Den, Inc., (Cougar Den)' held that the right-to-travel provision in a Yakama Indian treaty preempts application of a state motor fuels tax on a tribal business, Cougar Den, Inc. The case involves two strands of federal Indian law jurisprudence: interpretation of Indian treaties and state taxing authority over activities of Indians and Indian tribes. Although the case represents an endorsement of the traditional way of interpreting Indian treaties, the Justices did not agree as to the conclusions to draw from the language and history of the Yakama treaty. After a brief statement of facts, this sidebar provides an analysis of the Supreme Court's decision in 'Cougar Den'. It first discusses state taxing authority over activities of tribal Indians. Next, it provides a brief description of the Washington motor fuels tax. It then turns to the 1855 Treaty and the principles that courts have used to interpret Indian treaties. Next, the sidebar identifies the basic points in each of the opinions written by the Justices in 'Cougar Den'. Finally, the sidebar addresses potential implications of the case and possible considerations for Congress."
Library of Congress. Congressional Research Service
Murphy, M. Maureen
2019-04-05
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High Court to Review Tribal Police Search and Seizure Case [December 14, 2020]
From the Document: "On November 20, 2020, the U.S. Supreme Court added 'United States v. Cooley' to the cases it will hear this term. 'Cooley' brings into focus the jurisdictional maze complicating criminal law enforcement on Indian reservations. The Court is to evaluate whether (or to what extent) a tribal police officer may detain and search a non-Indian on a public highway running through an Indian reservation. More specifically, the parties disagree about the scope of a tribal police officer's authority to investigate--through questioning or search--when criminal behavior is reasonably suspected, but is not 'apparent' or 'obvious.' This case implicates the constitutional right to be free from unreasonable searches and seizures, but it also raises questions about the scope of tribal sovereignty and tribes' authority to protect their lands and members from criminal activity. Congress may wish to consider legislation to clarify the rights and responsibilities of tribal and non-Indian parties when conflicts like this arise. [...] Before discussing the lower court decisions and Supreme Court petition, this Sidebar will briefly describe how the courts have distinguished tribal authority for conducting investigations of non-Indians within an Indian reservation from general non-tribal police authority to conduct searches and seizures."
Library of Congress. Congressional Research Service
Murphy, M. Maureen; Schwartz, Mainon A.
2020-12-14
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Financial Institution Insolvency: Federal Authority over Fannie Mae, Freddie Mac, and Depository Institutions [September 10, 2008]
"On September 7, 2008, the Secretary of the Treasury announced that the Federal Housing Finance Agency (FHFA), the newly installed regulator of the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac), had been appointed conservator of the two enterprises. Until the enactment of the Housing and Economic Recovery Act of 2008 (P.L. 110- 289), there was no clear statutory authority for dealing with the insolvency of either or both of these two mortgage giants. Among the reforms included in P.L. 110-289 were extensive provisions providing the FHFA with powers that substantially parallel those accorded the Federal Deposit Insurance Corporation (FDIC) to deal with every aspect of insolvencies of any bank or thrift institution that holds federally insured deposits. The government's takeover of Fannie Mae and Freddie Mac is expected to have a great impact upon the mortgage market. Because it is the model on which the FHFA's conservatorship and receivership authorities are based and because there has been sufficient experience with it to provide guidance as to how the FHFA is likely to operate, the FDIC's bank and thrift insolvency process is set forth in some detail. That is followed by an exposition of the authority given to FHFA in P.L. 110-289. The issues discussed include how the process is initiated; when a conservatorship is selected; when a receivership is selected; any differences between the two; when judicial review is available; what priorities are established for claims against a receivership; and what authority exists for repudiating claims."
Library of Congress. Congressional Research Service
Carpenter, David Hatcher; Murphy, M. Maureen
2008-09-10
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Bitcoin: Questions, Answers, and Analysis of Legal Issues [July 15, 2014]
"Bitcoin first appeared in January 2009, the creation of a computer programmer using the pseudonym Satoshi Nakamoto. His invention is an open source (its controlling computer code is open to public view), peer to peer (transactions do not require a third-party intermediary such as PayPal or Visa), digital currency (being electronic with no physical manifestation). The Bitcoin system is private, but with no traditional financial institutions involved in transactions. Unlike earlier digital currencies that had some central controlling person or entity, the Bitcoin network is 'completely decentralized', with all parts of transactions performed by the users of the system. With a Bitcoin transaction there is no third party intermediary. The buyer and seller interact directly (peer to peer) but their identities are encrypted and no personal information is transferred from one to the other. However, unlike a fully anonymous transaction, there is a transaction record. A full transaction record of every Bitcoin and every Bitcoin user's encrypted identity is maintained on the public ledger. For this reason Bitcoin transactions are thought to be pseudonymous, not anonymous. Although the scale of Bitcoin use has increased substantially, it still remains small in comparison to traditional electronic payments systems such as credit cards and the use of dollars as a circulating currency. Congress is interested in Bitcoin because of concerns about its use in illegal money transfers, concerns about its effect on the ability of the Federal Reserve to meet its objectives (of stable prices, maximum employment, and financial stability), and concerns about the protection of consumers and investors who might use it."
Library of Congress. Congressional Research Service
Elwell, Craig Kent, 1947-; Murphy, M. Maureen; Seitzinger, Michael V.
2014-07-15
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Volcker Rule: A Legal Analysis [March 27, 2014]
"This report provides an introduction to the Volcker Rule, which is the regulatory regime imposed upon banking institutions and their affiliates under Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (P.L. 111-203). The Volker Rule is designed to prohibit 'banking entities' from engaging in all forms of 'proprietary trading' (i.e., making investments for their own 'trading accounts')--activities that former Federal Reserve Chairman Paul A. Volcker often condemned as contrary to conventional banking practices and a potential risk to financial stability. The statutory language provides only general outlines of prohibited activities and exceptions. Through it, however, Congress has empowered five federal financial regulators with authority to conduct coordinated rulemakings to fill in the details and complete the difficult task of crafting regulations to identify prohibited activities, while continuing to permit activities considered essential to the safety and soundness of banking institutions or to the maintenance of strong capital markets. In December 2014, more than two years after enactment of the law, coordinated implementing regulations were issued by the Office of the Comptroller of the Currency (OCC), the Federal Deposit Insurance Corporation (FDIC), the Board of Governors of the Federal Reserve System (FRB), the Securities and Exchange Commission (SEC), and the Commodity Futures Trading Commission (CFTC)."
Library of Congress. Congressional Research Service
Carpenter, David Hatcher; Murphy, M. Maureen
2014-03-27
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JPMorgan Data Breach Involves Information on 76 Million Households, 7 Million Small Businesses [October 23, 2014]
From the Document: "On October 7, 2014, JPMorgan Chase & Co. (JPMorgan) filed with the Securities and Exchange Commission (SEC), a statement disclosing some details of the data breach first announced in August. According to the filing, although account information was not compromised, hackers had access to information of users of Chase.com, JPMorganOnline, Chase Mobile, and JPMorgan Mobile, covering 'name, address, phone number and email address [information] -- and internal JPMorgan Chase information relating to ... approximately 76 million households and 7 million small businesses.' The company reported that it had found 'no evidence that ... account numbers, passwords, user IDs, dates of birth or Social Security numbers ... [were] compromised.' On its website, the JPMorgan's national bank advises customers that it has 'seen no unusual fraud activity related to this incident' and that customers will not be liable for unauthorized transactions promptly reported. On a second webpage, the bank proclaims that JPMorgan believes that the attack has been stopped and that customers do not need to change their credit or debit cards or employ a credit monitoring service, but cautions customers to be on the alert for phishing scams."
Library of Congress. Congressional Research Service
Murphy, M. Maureen
2014-10-23
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How OFAC Calculates Penalties for Violations of Economic Sanctions [December 1, 2014]
"Treasury's Office of Foreign Assets Control (OFAC) is charged with enforcing a range of economic sanctions programs in connection with which it has taken recent enforcement actions involving staggering amounts of civil money penalties. This has raised questions as to how OFAC confronts apparent violations and deals with the myriad types of companies and financial institutions that must comply with economic sanctions. OFAC's sanctions regulations prohibit or regulate transactions with, and order the blocking of property of certain foreign nations, persons, or entities identified as threatening the national security of the United States. Sanctions are imposed pursuant to specific statute or by Presidential Executive Order issued under the International Emergency Economic Powers Act of 1977 (IEEPA). […] When OFAC becomes aware of an apparent violation, it determines what type of enforcement action is appropriate after considering a number of factors provided in the Guidelines. There is no indication of the weight OFAC gives to each factor or the extent to which any one of the factors or combination of factors would moot an enforcement action or require a specific action. What the Guidelines pinpoint, however, is that OFAC looks kindly on self-reporting, cooperation, and good faith efforts at compliance."
Library of Congress. Congressional Research Service
Murphy, M. Maureen
2014-12-01
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Federal Reserve: Dividends Paid to Commercial Banks [November 20, 2015]
"Currently, the Federal Reserve (Fed) pays a 6% dividend on stock it has issued to commercial banks. As a 'pay for' (budgetary offset), the Senate-passed highway trust fund bill (H.R. 22) would reduce the dividend to 1.5% for banks with more than $1 billion in assets. The Congressional Budget Office estimates that this provision would raise revenues by $17 billion over 10 years. Based on Fed data, 157 national banks and 121 state member banks have more than $1 billion in assets. (The House-passed version of H.R. 22 replaced the dividend cut with a provision eliminating the Fed's surplus.) All nationally chartered commercial banks are required to, and state-chartered commercial banks have the option to, become member banks of the Federal Reserve System. In 2014, 1,065 national banks and 858 state banks were members. To finance the creation of the Fed, the Federal Reserve Act of 1913 required member banks to purchase stock issued by the Fed paying a dividend of 6%, which has not been changed since. Member banks are required to purchase ('pay in') stock equal to 3% of their capital, and the Fed has the option to call in an additional 3%. The Fed records paid-in stock as capital on its balance sheet. At the end of 2014, member banks had paid-in stock of $28.6 billion, for which they received $1.7 billion of dividends. Over the past 100 years, the Fed has cumulatively paid out $20.5 billion in dividends, which are subject to federal tax unless issued before March 1942."
Library of Congress. Congressional Research Service
Labonte, Marc; Murphy, M. Maureen
2015-11-20
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Bitcoin: Questions, Answers, and Analysis of Legal Issues [August 14, 2015]
"Bitcoin first appeared in January 2009, the creation of a computer programmer using the pseudonym Satoshi Nakamoto. His invention is an open-source (its controlling computer code is open to public view), peer-to-peer (transactions do not require a third-party intermediary such as PayPal or Visa) digital currency (being electronic with no physical manifestation). The Bitcoin system is private, with no traditional financial institutions involved in transactions. Unlike earlier digital currencies that had some central controlling person or entity, the Bitcoin network is completely decentralized, with all parts of transactions performed by the users of the system. With a Bitcoin transaction there is no third-party intermediary. The buyer and seller interact directly (peer to peer), but their identities are encrypted and no personal information is transferred from one to the other. However, unlike a fully anonymous transaction, there is a transaction record. A full transaction record of every Bitcoin and every Bitcoin user's encrypted identity is maintained on the public ledger. For this reason, Bitcoin transactions are thought to be pseudonymous, not anonymous. Although the scale of Bitcoin use has increased substantially, it still remains small in comparison to traditional electronic payments systems, such as credit cards, and the use of dollars as a circulating currency."
Library of Congress. Congressional Research Service
Murphy, Edward Vincent; Murphy, M. Maureen; Seitzinger, Michael V.
2015-08-14
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Bitcoin: Questions, Answers, and Analysis of Legal Issues [January 28, 2015]
"Bitcoin first appeared in January 2009, the creation of a computer programmer using the pseudonym Satoshi Nakamoto. His invention is an open-source (its controlling computer code is open to public view), peer-to-peer (transactions do not require a third-party intermediary such as PayPal or Visa) digital currency (being electronic with no physical manifestation). The Bitcoin system is private, with no traditional financial institutions involved in transactions. Unlike earlier digital currencies that had some central controlling person or entity, the Bitcoin network is completely decentralized, with all parts of transactions performed by the users of the system. With a Bitcoin transaction there is no third-party intermediary. The buyer and seller interact directly (peer to peer), but their identities are encrypted and no personal information is transferred from one to the other. However, unlike a fully anonymous transaction, there is a transaction record. A full transaction record of every Bitcoin and every Bitcoin user's encrypted identity is maintained on the public ledger. For this reason, Bitcoin transactions are thought to be pseudonymous, not anonymous. Although the scale of Bitcoin use has increased substantially, it still remains small in comparison to traditional electronic payments systems, such as credit cards, and the use of dollars as a circulating currency. […] In addition, Bitcoin raises a number of legal and regulatory concerns, including its potential for facilitating money laundering, its treatment under federal securities law, and its status in the regulation of foreign exchange trading."
Library of Congress. Congressional Research Service
Elwell, Craig Kent, 1947-; Murphy, M. Maureen; Seitzinger, Michael V.
2015-01-28
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Bitcoin: Questions, Answers, and Analysis of Legal Issues [October 13, 2015]
"Bitcoin first appeared in January 2009, the creation of a computer programmer using the pseudonym Satoshi Nakamoto. His invention is an open-source (its controlling computer code is open to public view), peer-to-peer (transactions do not require a third-party intermediary such as PayPal or Visa) digital currency (being electronic with no physical manifestation). The Bitcoin system is private, with no traditional financial institutions involved in transactions. Unlike earlier digital currencies that had some central controlling person or entity, the Bitcoin network is completely decentralized, with all parts of transactions performed by the users of the system. With a Bitcoin transaction there is no third-party intermediary. The buyer and seller interact directly (peer to peer), but their identities are encrypted and no personal information is transferred from one to the other. However, unlike a fully anonymous transaction, there is a transaction record. A full transaction record of every Bitcoin and every Bitcoin user's encrypted identity is maintained on the public ledger. […] Bitcoin offers users the advantages of lower transaction costs, increased privacy, and long-term protection of loss of purchasing power from inflation. However, it also has a number of disadvantages that could hinder wider use. These include sizable volatility of the price of Bitcoins, uncertain security from theft and fraud, and a long-term deflationary bias that encourages the hoarding of Bitcoins. In addition, Bitcoin raises a number of legal and regulatory concerns, including its potential for facilitating money laundering, its treatment under federal securities law, and its status in the regulation of foreign exchange trading."
Library of Congress. Congressional Research Service
Murphy, Edward Vincent; Murphy, M. Maureen; Seitzinger, Michael V.
2015-10-13
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FinCEN's Money Laundering Death Penalty Temporarily Blocked [October 6, 2015]
"On August 27, 2015, the U.S. District Court for the District of Columbia, issued a preliminary injunction in FBME Bank Ltd. v. Lew, enjoining Treasury's Financial Crimes Enforcement Network (FinCEN) from implementing a regulation that cuts off FBME Bank Ltd. (FBME) from the U.S. financial system. FBME, formerly known as the Bank of the Middle East, is headquartered in Tanzania and operates primarily in Cyprus. The regulation, proposed on July 22, 2014, and finalized on July 29, 2015, was scheduled to go into effect on August 29, 2015. It subjects FBME to the most powerful of five 'special measures' (sanctions) that FinCEN can levy on a financial institution found to be 'of primary money laundering concern' under Section 311 of the USA PATRIOT Act. It prohibits all U.S. financial institutions from opening or maintaining correspondent or payable-through accounts for FBME and to exercise due diligence to prevent other foreign correspondent accounts from being used to process FBME transactions. The ruling is the first judicial decision on FinCEN's exercise of its power under Section 311. In response to the preliminary injunction, the government moved for a voluntary remand for FinCEN to reopen the rulemaking. After FBME objected, on September 18, 2015, the court ordered a full hearing on the issue, requiring the government's brief by October 5, and FBME's reply brief by October 13."
Library of Congress. Congressional Research Service
Murphy, M. Maureen
2015-10-06
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Federal Reserve: Dividends Paid to Commercial Banks [October 28, 2015]
"This 'Insight' provides background on dividends paid to banks by the Federal Reserve (Fed), which would be reduced in the Senate-passed highway trust fund bill (H.R. 22) as a budgetary offset. All nationally chartered commercial banks are required to, and state-chartered commercial banks have the option to, become member banks of the Federal Reserve System. In 2014, 1,065 national banks and 858 state banks were members. To finance the creation of the Fed, the Federal Reserve Act of 1913 required member banks to purchase stock issued by the Fed paying a dividend of 6%, which has not been changed since. Member banks are required to purchase ('pay in') stock equal to 3% of their capital, and the Fed has the option to call in an additional 3%. The Fed records paid-in stock as capital on its balance sheet. At the end of 2014, member banks had paid-in stock of $28.6 billion, for which they received $1.7 billion of dividends. Over the past 100 years, the Fed has cumulatively paid out $20.5 billion in dividends, which are subject to federal tax unless issued before March 1942. The Fed is a self-financing agency that annually yields a profit (positive net income) that is used to pay dividends, add to its surplus, and make remittances to Treasury, which reduce the federal budget deficit. In 2014, the Fed had profits of $101.3 billion, of which $96.9 billion were remitted to Treasury. Presumably, a reduction in dividends would increase remittances. H.R. 22 would reduce the dividend to 1.5% for banks with more than $1 billion in assets. The Congressional Budget Office estimates that this provision would raise revenues by $17 billion over 10 years. Based on Fed data, 157 national banks and 121 state member banks have more than $1 billion in assets."
Library of Congress. Congressional Research Service
Labonte, Marc; Murphy, M. Maureen
2015-10-28
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Glass-Steagall Act: A Legal and Policy Analysis [January 19, 2016]
From the Summary: "The phrase 'Glass-Steagall' generally refers to the separation of commercial banking from investment banking. Congress effected a separation of commercial and investment banking through four sections of the Banking Act of 1933--Sections 16, 20, 21, and 32. These four statutory provisions are commonly referred to as the Glass-Steagall Act."
Library of Congress. Congressional Research Service
Carpenter, David Hatcher; Murphy, Edward Vincent; Murphy, M. Maureen
2016-01-19
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Federal Reserve Issues Final Rule on Emergency Lending [January 6, 2016]
"On November 30, 2015, the Federal Reserve (Fed) issued final regulations governing emergency lending under Section 13(3) of the Federal Reserve Act and implementing Section 1101 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank). In response to comments received during the rulemaking process which criticized the proposed rules as lacking limits and meaningful definitions, the final regulations provide certain limits on the Fed's discretion under Section 13(3) that did not appear in the 2013 proposed regulations. The final rule implements the Dodd-Frank requirement that Section 13(3) lending provide liquidity to the entire financial system, as opposed to assisting individual distressed institutions. Nevertheless, House Financial Services Committee Chairman Jeb Hensarling issued a press release decrying the final rule as 'leaving the door wide open to future taxpayer-funded bailouts.' H.R. 3189, as passed by the House on November 11, 2015, H.R. 2625, and S. 1320 would further curtail the Fed's flexibility under Section 13(3)."
Library of Congress. Congressional Research Service
Labonte, Marc; Murphy, M. Maureen
2016-01-06
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'Volcker Rule': Proposals to Limit 'Speculative' Proprietary Trading by Banks [June 30, 2010]
"In 1933, during the first 100 days of President Franklin D. Roosevelt's New Deal, the Securities Act of 1933 and the Glass-Steagall Act (GSA) were enacted, setting up a pervasive regulatory scheme for the public offering of securities and generally prohibiting commercial banks from underwriting and dealing in those securities. Banks are subject to heavy, expensive prudential regulation, while the regulation of securities firms is predominately built around registration, disclosure of risk, and the prevention and prosecution of insider trading and other forms of fraud. While there are two distinct regulatory systems, the distinguishing lines between the traditional activities engaged in by commercial and investment banks became increasingly difficult to discern as a result of competition, financial innovation, and technological advances in combination with permissive agency and judicial interpretation. One of the benefits of being a bank, and thus being subject to more extensive regulation, is access to what is referred to as the 'federal safety net,' which includes the Federal Deposit Insurance Corporation's (FDIC's) deposit insurance, the Federal Reserve's discount window lending facility, and the Federal Reserve's payment system. In the wake of the Great Recession of 2008, there have been calls to reexamine the activities that should be permissible for commercial banks in light of the fact that they receive governmental benefits through access to the federal safety net. Some have called for the reenactment of the provisions of the GSA that imposed affiliation restrictions between banks and securities firms, which were repealed by the Gramm-Leach-Bliley Act (GLBA) in 1999."
Library of Congress. Congressional Research Service
Carpenter, David Hatcher; Murphy, M. Maureen
2010-06-30
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'Volcker Rule': Proposals to Limit 'Speculative' Proprietary Trading by Banks [June 22, 2010]
"In 1933, during the first 100 days of President Franklin D. Roosevelt's New Deal, the Securities Act of 1933 and the Glass-Steagall Act (GSA) were enacted, setting up a pervasive regulatory scheme for the public offering of securities and generally prohibiting commercial banks from underwriting and dealing in those securities. Banks are subject to heavy, expensive prudential regulation, while the regulation of securities firms is predominately built around registration, disclosure of risk, and the prevention and prosecution of insider trading and other forms of fraud. While there are two distinct regulatory systems, the distinguishing lines between the traditional activities engaged in by commercial and investment banks became increasingly difficult to discern as a result of competition, financial innovation, and technological advances in combination with permissive agency and judicial interpretation. One of the benefits of being a bank, and thus being subject to more extensive regulation, is access to what is referred to as the 'federal safety net,' which includes the Federal Deposit Insurance Corporation's (FDIC's) deposit insurance, the Federal Reserve's discount window lending facility, and the Federal Reserve's payment system. In the wake of the Great Recession of 2008, there have been calls to reexamine the activities that should be permissible for commercial banks in light of the fact that they receive governmental benefits through access to the federal safety net. Some have called for the reenactment of the provisions of the GSA that imposed affiliation restrictions between banks and securities firms, which were repealed by the Gramm-Leach-Bliley Act (GLBA) in 1999."
Library of Congress. Congressional Research Service
Carpenter, David Hatcher; Murphy, M. Maureen
2010-06-22
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Executive Order 13438: Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq [January 24, 2014]
"On July 17, 2007, President Bush issued Executive Order 13438, Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq. It is the latest in a series of executive orders based on the national emergency declared by President Bush with respect to 'the unusual and extraordinary threat to the national security and foreign policy of the United States posed by obstacles to the orderly reconstruction of Iraq, the restoration and maintenance of peace and security in that country, and the development of political, administrative and economic institutions in Iraq.' Regulations implementing this Executive Order were issued on September 13, 2010. […] It [this report] examines the reach of the executive order and provides legal analyses of some of the constitutional questions raised in the courts by similar sanctions programs, noting that the broad language of the executive order is not unprecedented. The Department of the Treasury's Office of Foreign Assets Control (OFAC) has published names of persons designated under the executive order and issued regulations further refining its terms and applicability. The report examines some of the procedures available to challenge OFAC sanction regulations and briefly discusses OFAC's rules, which may be of concern to attorneys representing individuals and entities subjected to sanctions or involved in transactions with sanctioned persons. Since December 2009, there have been no additions to the list of blocked persons and several OFAC announcements removing designated individuals and entities from the List of Designated Nationals and Blocked Persons."
Library of Congress. Congressional Research Service
Murphy, M. Maureen
2014-01-24
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Bitcoin: Questions, Answers, and Analysis of Legal Issues [December 20, 2013]
"The Bitcoin system is private, but with no traditional financial institutions involved in transactions. Unlike earlier digital currencies that had some central controlling person or entity, the Bitcoin network is 'completely decentralized', with all parts of transactions performed by the users of the system. With a Bitcoin transaction there is no third party intermediary. The buyer and seller interact directly (peer to peer) but their identities are encrypted and no personal information is transferred from one to the other. However, unlike a fully anonymous transaction, there is a transaction record. A full transaction record of every Bitcoin and every Bitcoin user's encrypted identity is maintained on the public ledger. For this reason Bitcoin transactions are thought to be pseudonymous, not anonymous. Although the scale of Bitcoin use has increased substantially, it still remains small in comparison to traditional electronic payments systems such as credit cards and the use of dollars as a circulating currency. Congress is interested in Bitcoin because of concerns about its use in illegal money transfers, concerns about its effect on the ability of the Federal Reserve to meet its objectives (of stable prices, maximum employment, and financial stability), and concerns about the protection of consumers and investors who might use it. […] Bitcoin also raises a number of legal and regulatory concerns including its potential for facilitating money laundering, its treatment under federal securities law, and its status in the regulation of foreign exchange trading."
Library of Congress. Congressional Research Service
Elwell, Craig Kent, 1947-; Murphy, M. Maureen; Seitzinger, Michael V.
2013-12-20
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High Court to Review Tribal Police Search and Seizure Case [Updated April 1, 2021]
From the Document: "'Update: On March 23, 2021, the Supreme Court heard oral arguments [hyperlink] in the tribal police search and seizure case covered in this post,' United States v. Cooley. 'A decision in United States v. Cooley is expected before the Court's summer recess [hyperlink].' On November 20, 2020, the U.S. Supreme Court added 'United States v. Cooley' [hyperlink] to the cases it will hear this term. 'Cooley' brings into focus the jurisdictional maze complicating criminal law enforcement on Indian reservations. The Court is to evaluate whether [hyperlink] (or to what extent) a tribal police officer may detain and search a non-Indian on a public highway running through an Indian reservation. More specifically, the parties disagree about the scope of a tribal police officer's authority to investigate--through questioning or search--when criminal behavior is reasonably suspected, but is not 'apparent' or 'obvious.' This case implicates the constitutional right [hyperlink] to be free from unreasonable searches and seizures, but it also raises questions about the scope of tribal sovereignty and tribes' authority to protect their lands and members from criminal activity. Congress may wish to consider legislation to clarify the rights and responsibilities of tribal and non-Indian parties when conflicts like this arise. [...] Before discussing the lower court decisions and Supreme Court petition, this Sidebar will briefly describe how the courts have distinguished tribal authority for conducting investigations of non-Indians within an Indian reservation from general non-tribal police authority to conduct searches and seizures."
Library of Congress. Congressional Research Service
Murphy, M. Maureen; Schwartz, Mainon A.
2021-04-01
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Privacy Protection for Customer Financial Information [January 12, 2012]
"GLBA [Gramm-Leach-Bliley Act, P.L. 106-102] prohibits financial institutions from sharing nonpublic personally identifiable customer information with non-affiliated third parties without providing customers an opportunity to opt out and mandates various privacy policy notices. It requires financial institutions to safeguard the security and confidentiality of customer information. FCRA [Fair Credit Reporting Act] regulates the credit reporting industry by prescribing standards that address information collected by businesses that provide data used to determine eligibility of consumers for credit, insurance, or employment and limits purposes for which such information may be disseminated. One of its provisions, which became permanent with the enactment of P.L. 108-159, permits affiliated companies to share non-public personal information with one another provided the customer does not choose to opt out. CFPA [Consumer Financial Protection Act] alters the regulatory landscape for these laws. The newly created CFPB [Consumer Financial Protection Bureau] has responsibility for issuing rules under these privacy provisions. It has primary enforcement authority over non-depository institutions (subject to certain exceptions) and over depository institutions with more than $10 billion in assets. For depository institutions with assets of $10 billion or less, the CFPB's rules apply but enforcement authority remains with the banking regulators, subject to certain prerogatives of the CFPB. In the 112th Congress, there is at least one measure, H.R. 653, that is aimed at amending GLBA's privacy provisions. There are also several general financial privacy or data breach bills that include proposals to provide safe harbors for entities subject to GLBA rules. Among the latter are H.R. 1707, H.R. 1841, H.R. 2577, S. 1151, S. 1207, S. 1408, and S. 1535, three of which, S. 1151, S. 1408, and S. 1535, were reported by the Senate Committee on the Judiciary during the first session of the 112th Congress."
Library of Congress. Congressional Research Service
Murphy, M. Maureen
2012-01-12
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Privacy Protection for Customer Financial Information [January 9, 2014]
"GLBA [Gramm-Leach-Bliley Act of 1999] prohibits financial institutions from sharing nonpublic personally identifiable customer information with non-affiliated third parties without providing customers an opportunity to opt out and mandates various privacy policy notices. It requires financial institutions to safeguard the security and confidentiality of customer information. FCRA [Fair Credit Reporting Act] regulates the credit reporting industry by prescribing standards that address information collected by businesses that provide data used to determine eligibility of consumers for credit, insurance, or employment and limits purposes for which such information may be disseminated. [...] The creation of CFPB alters the regulatory landscape for these laws. It has primary enforcement authority over non-depository institutions (subject to certain exceptions) and over depository institutions with more than $10 billion in assets. For depository institutions with assets of $10 billion or less, the CFPB's rules apply but enforcement authority remains with the banking regulators, subject to certain prerogatives of the CFPB. In the first session of the 113th Congress, the House passed H.R. [House Resolution] 749, which would eliminate the GLBA requirement for an annual privacy notice if the financial institution has not changed its policies and practice with respect to sharing nonpublic personal information since its last disclosure. A similar bill, S. 635, would require that any financial institution eliminating its annual privacy notice must provide electronic access to its privacy policies."
Library of Congress. Congressional Research Service
Murphy, M. Maureen
2014-01-09
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Treasury's Terrorist Finance Program's Access to Information Held by the Society for Worldwide Interbank Financial Telecommunication (SWIFT) [July 7, 2006]
"Recent press reports have raised questions about the Department of the Treasury's Terrorist Finance Tracking Program's access to information on international financial transactions held by the Society for Worldwide Interbank Financial Telecommunication (SWIFT), a Brussels-based organization owned by banks in many countries, which serves as a hub for international funds transfers. Its records contain names, addresses, and account numbers of senders and receivers of international wire transfers between banks and between securities firms, thus providing a useful source for federal officials responsible for following money trails across international borders. On June 29, 2006, the House of Representatives passed H.Res. 895 voicing support for the Treasury program as fully compliant with all applicable laws; condemning the unauthorized disclosure of classified information; and calling upon news media organizations not to disclose classified intelligence programs. H.Res. 904 was introduced to discourage government censorship of the press."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Murphy, M. Maureen
2006-07-07
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Executive Order 13438: Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq [November 16, 2007]
"This report provides a brief history of the development of presidential powers in peacetime. It discusses some of the issues that might be raised in light of the contrast between the executive order's broad language and its narrow aim - supplementation of sanctions applicable to Al-Queda and former Iraq regime officials to cover terrorists operating in Iraq. It examines the reach of the executive order and provides legal analyses of some of the constitutional questions raised in the courts by similar sanctions programs, noting that the broad language of the executive order is not unprecedented. In view of the fact that there is an expectation that the Department of the Treasury's Office of Foreign Assets Control (OFAC) will publish names of persons designated under the executive order and issue regulations further refining its terms and applicability, the report examines some of the procedures available to challenge OFAC sanction regulations and briefly discusses OFAC's rules, which may be of concern to attorneys representing individuals and entities subjected to sanctions or involved in transactions with sanctioned persons."
Library of Congress. Congressional Research Service
Murphy, M. Maureen
2007-11-16
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'Mashpee Wampanoag v. Bernhardt': A Tale of Two Definitions of 'Indian' [August 17, 2020]
From the Document: "On June 6, 2020, in 'Mashpee Wampanoag v. Bernhardt' ('Mashpee'), the U.S. District Court for the District of Columbia (D.C. District Court) gave the Mashpee Wampanoag Tribe (Tribe or Mashpee Tribe) another opportunity to retain reservation status for land in Taunton and Mashpee, Massachusetts, that the Department of the Interior (DOI) had taken into trust and declared eligible for gaming as an 'initial reservation' in 2015. The agency's Record of Decision to take the land into trust (2015 ROD) relied on DOI's interpretation that the Mashpee Tribe met the second of alternative definitions of 'Indian' in the Indian Reorganization Act (IRA), the principal statute providing DOI authority to take land into trust 'for Indians.' In 2016, the U.S. District Court for Massachusetts (Massachusetts District Court) disagreed with DOI, holding that the Tribe did not satisfy that definition."
Library of Congress. Congressional Research Service
Murphy, M. Maureen
2020-08-17
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Privacy Protection for Customer Financial Information [July 14, 2014]
"One of the functions transferred to the Consumer Financial Protection Bureau (CFPB) under P.L. 111-203, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), is authority to issue regulations and take enforcement actions under the two major federal statutes that specify conditions under which customer financial information may be shared by financial institutions: Title V of the Gramm-Leach-Bliley Act of 1999 (GLBA, P.L. 106-102) and the Fair Credit Reporting Act (FCRA). Possible topics for congressional oversight in the 113th Congress include (1) the transition of power from the financial institution prudential regulators and the Federal Trade Commission to the CFPB; (2) CFPB's interaction with other federal regulators and coordination with state enforcement efforts; and (3) the CFPB's success at issuing rules that adequately protect consumers without unreasonably increasing the regulatory burden on financial institutions. […] In the first session of the 113th Congress, the House passed H.R. 749, which would eliminate the GLBA requirement for an annual privacy notice if the financial institution has not changed its policies and practice with respect to sharing nonpublic personal information since its last disclosure. A similar bill, S. 635, would require that any financial institution eliminating its annual privacy notice must provide electronic access to its privacy policies. Several bills that require data breach notifications, H.R. 3990, S. 1193, S. 1897, and S. 1995, provide exemptions for financial institutions covered by the GLBA privacy provisions."
Library of Congress. Congressional Research Service
Murphy, M. Maureen
2014-07-14
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International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, Title III of P.L. 107-56 [December 4, 2001]
From the Introduction: "Among the purposes of the legislation are: increasing the strength of U.S. measures to prevent, detect, and prosecute international money laundering and the financing of terrorism, to provide a national mandate for subjecting to special scrutiny foreign jurisdictions, financial institutions operating outside the United States, and classes of international transactions or types of accounts that pose particular opportunities for criminal abuse, and to ensure that all appropriate elements of the financial services industry are subject to appropriate requirements to report potential money laundering transactions to proper authorities."
Library of Congress. Congressional Research Service
Murphy, M. Maureen
2001-12-04
