The Financial Crimes Enforcement Network (“FinCEN”) recently issued a Proposed Rule to implement the Anti-Money Laundering Whistleblower Improvement Act (“AML WIA”). Whistleblower advocates argue that the proposed rule diverges from Congressional intent and fails to sufficiently protect or incentivize whistleblowers, undermining the law’s purpose.
On April 30th, the National Whistleblower Center submitted 19 comments to FinCEN, identifying how the Proposed Rules weaken the AML whistleblower program’s impact. This article examines how the provision of the proposed rule concerning the submission of Form TCR (Tip, Complaint, or Referral), the official form to submit original information about potential violations, risks disqualifying otherwise meritorious whistleblowers on purely technical grounds.
If left unchanged, the NWC argues, FinCEN’s proposed rules could prevent qualified whistleblowers from receiving awards even when their disclosures directly lead to successful enforcement actions. The NWC has called on FinCEN to revise both provisions before the comment period closes on June 1, 2026. To learn more about NWC’s campaign, click here.
Award Eligibility and “Voluntary”
The FinCEN regulations implement the statutory framework of the Anti-Money Laundering WIA of 2022 (“AML WIA”), which advocates call the broadest transnational U.S. whistleblower law Congress has ever passed. According to FinCEN, its implementation of the program carries the important responsibility of facilitating and incentivizing a massive new slate of whistleblower tips. Previously, the NWC points out, similarly structured whistleblower programs have been crucial to the nation’s anti-corruption efforts. Data from the U.S. Securities and Exchange Commission (“SEC”) shows that its whistleblower program has recovered since 2010.
Like the SEC’s program, the AML WIA requires FinCEN to pay a mandatory award of 10-30% to eligible whistleblowers whose information leads to over $1 million in sanctions. Under the statute, one key requirement for such a monetary reward is that the whistleblower must voluntarily submit their “original information” to the Secretary, the Attorney General, or their employer.
According to comments submitted by the NWC, FinCEN’s definition of “voluntary” lacks clarity in several respects and could unfairly disqualify meritorious whistleblowers who initially provided original information to third parties or internal channels. If this is not corrected, the NWC says, FinCEN may repeat the SEC’s mistake and severely diminish the effectiveness of its new program.
FinCEN’s Definition of “Voluntary” is Inconsistent with the Statute
FinCEN’s proposed rule centers the definition of “voluntary” on the whistleblower’s willing submission of “original information.” The definition in the AML WIA of “original information” states that the Justice and Treasury Departments should learn about qualifying original information from the whistleblower, unless they learn of the information from a third party to which the whistleblower was an “original source” of the information. This exception, the NWC contends, reflects Congress’s recognition that a whistleblower should still qualify for protection or an award even when the information was previously disclosed through another channel.
The statute also states that information contained in “a government report, hearing, audit, or investigation, or from the news media” is still original information as long as the whistleblower was the original source to the news media. The NWC argues that the law’s explicit inclusion of these disclosure channels reflects Congress’s understanding that whistleblowers often provide information through avenues such as the news media while remaining the original source of that information.
According to the NWC, FinCEN’s proposed definition of “voluntary” fails to incorporate this plain meaning of “original information.” In the proposed rule, FinCEN defines a disclosure as “voluntary” if the submission of information occurs before any request, inquiry, or demand from Congress or another regulatory agency, but does not clarify whether third-party disclosures qualify as “voluntary.” This ambiguity could be interpreted to conclude that a submission is not voluntary if FinCEN first learns of the information through a third-party channel, subsequently opens an investigation, and then contacts the whistleblower before the whistleblower submits a TCR to FinCEN—even if the whistleblower was the “original source” to the third party.
The NWC asserts that this interpretation raises serious concerns under the Administrative Procedure Act (“APA”). Courts have held that agency actions exceeding statutory authority must be set aside. Here, the NWC argues that the proposed definition conflicts with the plain text of the AML WIA by potentially disqualifying otherwise award-eligible whistleblowers who provided original information to the proper authorities, and who Congress intended to qualify for awards by including them in the definition of “original information.” See Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
NWC argues that FinCEN should adopt the plain meaning of “voluntary” as defined in Webster’s Dictionary as the SEC did in its rulemaking implementing the Dodd-Frank Act’s whistleblower provisions. Webster’s defined “voluntary” as “Acting, or done, of one’s own free will without valuable consideration; acting or done without any present legal obligation to do the thing done or any such obligation that can accrue from the existing state of affairs.” United States ex rel. Fine v. Chevron, U.S.A., 72 F.3d 740 (9th Cir. 1995), cited in Securities Whistleblower Incentives and Protections, 76 Fed. Reg. 34300,307, 34, XXX n.71 (June 13, 2011). Under this definition, disclosures to third parties are clearly voluntary.
The SEC’s Example Definition of Voluntary is Flawed
FinCEN’s definition of “voluntary” is nearly identical to the SEC’s provisional language under the Dodd-Frank Act. 17 C.F.R. § 240.21F-4(a)(1). Similar to FinCEN’s proposed rule, the current SEC whistleblower program also defines “voluntary” to include only information submitted to the Commission before the Commission requests it from the whistleblower or whistleblower representative.
Just as FinCEN’s proposed rule conflicts with the AML WIA, the SEC’s definition diverges from the statutory language of the Dodd-Frank Act, which expressly recognizes that “original information” provided to the Commission through a third party may still qualify where the whistleblower is the “original source” of the information. It is clear that FinCEN adopted the language on “voluntary” in reference to the SEC, as the statutory language for both remains very similar.
Through comments, NWC raises the concern that the SEC’s interpretation of “voluntary” has, in practice, disqualified otherwise eligible whistleblowers based on their initial disclosures to third party channels such as the news media–a common arena whistleblowers turn to in order to expose wrongdoing. For example, Desiree Fixler, a whistleblower at Deutsche Bank, was denied an award despite spending two years and more than 100 hours assisting an investigation that resulted in a $19 million fine. She was deemed ineligible because she first disclosed the information to The Wall Street Journal and was contacted by the SEC before formally filing her complaint two days after the article’s publication.
Courts have recognized that this understanding of “voluntariness” can work against the public interest. In a recent D.C. Circuit decision, a whistleblower was contacted by the SEC after first disclosing information to the media before applying to the agency. The Court asked the SEC to consider applying an exception to the “voluntary” requirement where the whistleblower, as the
original source of the information, made the disclosure in furtherance of the public interest. Doe v. SEC, 2026 LX (D.C. CIR. April 17, 2026).
Like the AWL WIA, the Dodd-Frank Act explicitly provides that information disclosed in “a government report, hearing, audit, or investigation, or from the news media” may still constitute “original information” if the whistleblower was the original source. These channels have been identified by the Organization for Economic Co-operation and Development (“OECD”) as common disclosure pathways used by international whistleblowers. International whistleblowers are often less familiar with U.S. whistleblower procedures and reporting mechanisms, leading many to initially disclose information to the media or nongovernmental organizations rather than directly to government agencies.
Nonetheless, international whistleblowers have contributed significantly to the United States’ national interests. In fiscal year 2021 alone, the U.S. Securities and Exchange Commission whistleblower program received more than 5,000 international tips originating from 130 countries. Yet the SEC’s restrictive interpretation of “voluntary” disqualifies many of these extremely helpful foreign whistleblowers from award eligibility.
The NWC warns that if the same interpretation is used for FinCEN’s program, which has a much more international focus, many of the whistleblowers with the most valuable information on international money laundering will be disqualified from receiving awards. As the AML WIA’s core mission remains to incentivize more whistleblowers, both domestic and transnational, to come forward with information, FinCEN should learn from the SEC’s experience and ensure that unprompted disclosures to third parties qualify as “voluntary,” the NWC reasons.
FinCEN’s Definition of “Voluntary” Opens up Possibility for Abuse on Internal Disclosures
In contrast to Dodd-Frank, the AML WIA statute covers whistleblowers who disclose information internally to their employers. 31 U.S.C. § 5323(b)(1). However, FinCEN’s proposed definition of “voluntary” permits the disqualification of a whistleblower if Congress, any agency or authority, or a self-regulatory organization requests the information from the whistleblower’s employer before the whistleblower reports to FinCEN.
Previous research suggests that almost all whistleblowers initially try to report misconduct through internal channels before turning to external channels, yet a majority experience retaliation from the company. Examples of retaliation include isolation, forced time off, destruction of reputation, and even job loss. The NWC expressed concerns that the proposed rule creates a serious risk that employers could weaponize the reporting process to retaliate against whistleblowers by triggering agency contact prior to the whistleblower’s submission, thereby potentially disqualifying them from award eligibility. In Fixler’s case, the company’s CEO, against whom she blew the whistle, issued a memorandum criticizing her performance and subsequently sent it to Bloomberg, using the media to shift the narrative.
Threats of retaliation are even greater for international whistleblowers in countries that lack strong anti-retaliation laws; whistleblowers in those contexts can be imprisoned, fired, or even killed for speaking up, warns the NWC. It is particularly important that hostile employers in these contexts are not given any power over their employees’ eligibility for awards. The SEC’s Dodd-Frank regulations do not disqualify any whistleblowers based on their employer receiving a government inquiry. While the SEC’s overall treatment of “voluntariness” has been problematic, on this issue, FinCEN should follow the SEC’s lead.
Conclusion
History has demonstrated that whistleblowers are essential to anti-fraud efforts and have contributed significantly to the U.S. national interest. Advocates believe that the AML WIA and FinCEN’s proposed regulations could create the strongest U.S. whistleblower program to date. However, they stress, this goal cannot be achieved unless the program is designed to incentivize potential whistleblowers to the fullest extent possible. Accordingly, the definition of “voluntary” should be revised to reflect its plain meaning and the statutory framework, qualifying third-party whistleblowers for awards as the statute intended.
“The goal of the AML WIA is to incentivize reporting and provide protection for whistleblowers,” said Stephen Kohn, Chairman of NWC, “This cannot be done if large numbers of whistleblowers are considered ‘involuntary’ and thus disqualified from an award, when in fact they voluntarily reported the crimes but made their initial disclosures to entities that, by regulation (not statute), are not covered.”
