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Morris-Cotterill : Personal communication devices are fine for Star Trek but not in a securites house.

Nigel Morris-Cotterill

You'd have to have had your head in a bucket to fail to notice that people in financial institutions conduct business outside the authorised channels of communication. The only surprise in this case is that it's 2023 and the Securities and Exchange Commission has only recently got around to challenging it - and the vast majority of other regulators still haven't. But there's a lot more to the communications rules breaches than first meets the eye, says Nigel Morris-Cotterill

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The principle is simple: in various parts of the financial sector, there is a requirement that communications about transactions must be conducted through a medium that provides a record of the correspondence or communication.

Across the whole world, it's a long-standing requirement especially in securities businesses.

But there's a problem. Or rather there are many problems.

Let's look at the most basic of all: traders are in the risk business. In fact, personality tests show that they are fundamentally similar to criminals. It's either their morality or the risk of getting caught that keeps them on the right side of the law. Ish. While the vast majority stop short of out and out dishonesty, stealing customers' money for example, there is a much bigger problem with, for example, insider trading.

In fact, it's insider trading rather than fraud or even to ensure that there is a record of trades that drove the creation of rules that all communications relating to business must be recorded either in audio or in a text format.

But no one seriously believed that that was workable unless the trader was sitting at his desk using his office terminal or his desk phone. But as that was where traders worked, it was kind of ok.

But the trouble is that wasn't where traders worked. Even before CoVid-19 drove everyone to work from home, people were using all kinds of tech to free themselves. They weren't doing it to evade the controls, they were doing it because in a 24 hour trading world, no one can be at their desk twenty-four hours a day, 365 days a year and there's an imperative to go home, take the family out and even spend a few days working from the deck of a yacht or a beach in Bali. And that means using tech that isn't in the office.

There is also a cultural issue: when the rules were formed, mobile phones were still relatively primitive and messaging apps were a novelty. But now they are the first thing people think of when they want to talk or write to someone. And the reality is that most people who want to make a quick phone call don't stop to think "is this authorised?"

Don't imagine that there aren't people who use WhatsApp, Telegram or Signal or, previously, Blackberry because they think they are private and they can do dodgy business without being found out. Of course there are. But these are the same people who would write a tip on a Post-It and tack it to the underside of a table in a bar to be picked up unobtrusively.

Nigel Morris-Cotterill can be found at CounterMoneyLaundering.com

But what is obvious from the report of the USA's Securities and Exchange Commission into its action against eleven Wall Street companies in the securities industry is that there was an explosion of off-company communications during the pandenic.

This should surprise no-one. Remember it? People were told to go home and not return to the office. Do you remember all those Marie-Celeste like offices with half-drunk cups of coffee and the evidence that there is no such thing as a paperless office if no one does their filing before they go home?

There was no time to set up an effective security perimeter, never mind an office communications system that would keep everyone working as normal wherever they were. There was, simply a million and one things that were more important and more urgent.

But you can't tell a trader not to trade and you can't tell managers not to manage or directors not to direct.

Traders were left without their entire support system. It wasn't just the office girl or boy to fetch coffee or lunch, it was the question of access to research materials on secure servers that needed to be unlocked on a case by case basis.

The fact is that for an extended period, were it not for personal, off-system, communications Wall Street would have had to shut down. And once the habit was formed, like all bad habits, it will have been difficult to break.

The Commission and other regulators are absolutely right to pursue the breaches in the communications regulations - but in many cases, there are extenuating circumstances that the regulations are not designed to deal with.