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Digital Financial Institutions and the Crime of Extortion

 

On April 25, 2016, the Central Bank of Brazil (BACEN) regulated the opening and closing of a bank account through the Internet, through Resolution 4,480 / 2016.

This resolution establishes the requirements that financial institutions must adopt to open and close accounts by electronic means, in addition to conceptualizing what are, in fact, electronic means.

It characterized electronic media such as instruments and remote channels used for communication and exchange of information, without face-to-face contact, between clients and financial institutions and other institutions authorized to operate by BACEN (Article 1, item I, of Resolution 4,480 / 2016).

Among the requirements listed, one of the most important is the obligation of the financial institution to adopt procedures and controls to confirm the identity of the proposer, such as the need to send a selfie or video of the holder for approval of ownership.

It is known that all banking institutions have adapted to the virtual model, where all almost all transactions can be carried out without the need to go to an agency. However, purely virtual institutions have emerged.

At first it is questioned: is it really safe to open the account with sending personal documents over the Internet?

At first it is questioned: is it really safe to open the account with sending personal documents over the Internet?

Well, the institutions require a selfie of the accountant to validate with the personal identification document that will be presented, as well as a digital signature equal to the personal document now sent. The data sent is encrypted, guaranteeing its security in the transmission.

Also, if the account holder has a device with biometrics, the access will be given by him, without the need of typing of the password, besides that there is the sending of a security key ( token ) to complete the transactions.

However, the accountant should be aware of which electronic medium is performing this operation and it is not advisable to use third party equipment or public use, as the personal data of the holder will be inserted in it.

Therefore, the opening of a digital account and its virtual movements bring to the accountant the expected security, including the fact that digital as well as conventional financial institutions are subject to the rules of the Central Bank for fraud prevention, and are responsible when its occurrence, based on the summary 479 of the STJ.

Unfortunately, however, the violence in the country is relatively high, including crimes aimed at obtaining economic advantage, such as extortion. This crime has as main characteristic the fact that the agent coerces the victim to do, not do, or tolerate something done through the use of violence or serious threat.

Parallel to the existence of purely digital banking institutions, the security of the applications and the anti-fraud mechanisms that it presents is not discussed here, but rather the difficulty that exists today to assert whether access was made by the accountant in a legal or due to the coercion of the criminal agent.

This is because financial institutions follow the parameter of having entered the password and / or biometrics, both with the token confirmation, such operations are valid, which is why they are not objects of dispute. Thus, in theory, the trader, in addition to being a victim of a crime, also ends up obtaining financial loss.

Therefore, even though digital financial institutions are subject to BACEN regulations and current legislation, are they also counting on this risk arising from the use of the application by criminals? What is the output then?

Obviously, the first step to be taken by the victim is the completion of the report of occurrence so that the police authority begins the investigation of the crime. Secondly, it is necessary to plead the challenge for lack of knowledge of the transaction and, in case of a refusal of reversal by the financial institution, there will be no other action than the filing of a lawsuit.

It is extremely important to choose a lawyer who is fully involved in this segment because it is a delicate action which requires a detailed explanation to demonstrate to the judge that there is in fact the financial responsibility of the victim to compensate.

It should be noted that it is not all digital financial institutions that deny customer reimbursement in case of using the application for coercion of criminals. However, there are still those that only focus on the rule that personal password and / or biometrics were used.

At the same time that there is a concern of the digital financiers to be more and more inside all the innovations that the Internet provides, they can not forget that the criminals also adapt to these innovations.

One must not rule out the risks presented and the gaps that are the entry points for criminals, since even if this model attracts countless account holders per day, given the ease and practicality it provides, it is still an object of discussion from the standpoint the criminal risk it presents, and what its best solution is.