From: ph@netcom.com (Peter Hendrickson)
Date: Fri, 20 Oct 95 18:24:48 PDT
To: cypherpunks@toad.com
Subject: Lack of secrecy in U.S. Banks
Message-ID: <199510210107.SAA09911@netcom18.netcom.com>
MIME-Version: 1.0
Content-Type: text/plain



I ran across an interesting fragment of the U.S. Code.

Apparently, the Federal Government may access any banking records
whatsoever if the Director of the FBI (or the Director's designee)
certify that the information is sought for "foreign intelligence
purposes."  Further, it is illegal for anybody to disclose that the
records were turned over to the government, or even sought.  I do not
know the penalties for disclosure.

The Attorney General appears to set guidelines for the dissemination
of the information obtained through this law.  Note that if banking
privacy is violated for reasons which are not related to
counter-intelligence operations, the victim is unlikely to be in a
position to seek relief from the courts because the privacy violation
is likely to remain secret.

I've enclosed the law below.  I'm not a lawyer, so it raises more
questions than it answers.  Perhaps the more skilled readers on the
list will be able to deduce the implications.

The U.S. Code is available at http://www.pls.com:8001/his/usc.html

This particular law is available at the improbable URL:
http://www.pls.com:8001/cgi-bin/taos_doc.pl?unix+0+uscode+17566+query+a+Government+authority+authorized+to+conduct+foreign+counter+%25BREAK%25+uscode%3a

Here is the law itself:

-CITE-

   12 USC Sec. 3414                                             01/24/94

-EXPCITE-

   TITLE 12 - BANKS AND BANKING
   CHAPTER 35 - RIGHT TO FINANCIAL PRIVACY

-HEAD-

   Sec. 3414. Special procedures

-STATUTE-

     (a)(1) Nothing in this chapter (except sections 3415, 3417, 3418,
   and 3421 of this title) shall apply to the production and
   disclosure of financial records pursuant to requests from -
       (A) a Government authority authorized to conduct foreign
     counter- or foreign positive-intelligence activities for purposes
     of conducting such activities; or
       (B) the Secret Service for the purpose of conducting its
     protective functions (18 U.S.C. 3056; 3 U.S.C. 202, Public Law
     90-331, as amended).
     (2) In the instances specified in paragraph (1), the Government
   authority shall submit to the financial institution the certificate
   required in section 3403(b) of this title signed by a supervisory
   official of a rank designated by the head of the Government
   authority.
     (3) No financial institution, or officer, employee, or agent of
   such institution, shall disclose to any person that a Government
   authority described in paragraph (1) has sought or obtained access
   to a customer's financial records.
     (4) The Government authority specified in paragraph (1) shall
   compile an annual tabulation of the occasions in which this section
   was used.
     (5)(A) Financial institutions, and officers, employees, and
   agents thereof, shall comply with a request for a customer's or
   entity's financial records made pursuant to this subsection by the
   Federal Bureau of Investigation when the Director of the Federal
   Bureau of Investigation (or the Director's designee) certifies in
   writing to the financial institution that such records are sought
   for foreign counterintelligence purposes and that there are
   specific and articulable facts giving reason to believe that the
   customer or entity whose records are sought is a foreign power or
   an agent of a foreign power as defined in section 1801 of title 50.
     (B) The Federal Bureau of Investigation may disseminate
   information obtained pursuant to this paragraph only as provided in
   guidelines approved by the Attorney General for foreign
   intelligence collection and foreign counterintelligence
   investigations conducted by the Federal Bureau of Investigation,
   and, with respect to dissemination to an agency of the United
   States, only if such information is clearly relevant to the
   authorized responsibilities of such agency.
     (C) On a semiannual basis the Attorney General shall fully inform
   the Permanent Select Committee on Intelligence of the House of
   Representatives and the Select Committee on Intelligence of the
   Senate concerning all requests made pursuant to this paragraph.
     (D) No financial institution, or officer, employee, or agent of
   such institution, shall disclose to any person that the Federal
   Bureau of Investigation has sought or obtained access to a
   customer's or entity's financial records under this paragraph.
     (b)(1) Nothing in this chapter shall prohibit a Government
   authority from obtaining financial records from a financial
   institution if the Government authority determines that delay in
   obtaining access to such records would create imminent danger of -
       (A) physical injury to any person;
       (B) serious property damage; or
       (C) flight to avoid prosecution.
     (2) In the instances specified in paragraph (1), the Government
   shall submit to the financial institution the certificate required
   in section 3403(b) of this title signed by a supervisory official
   of a rank designated by the head of the Government authority.
     (3) Within five days of obtaining access to financial records
   under this subsection, the Government authority shall file with the
   appropriate court a signed, sworn statement of a supervisory
   official of a rank designated by the head of the Government
   authority setting forth the grounds for the emergency access.  The
   Government authority shall thereafter comply with the notice
   provisions of section 3409(c) of this title.
     (4) The Government authority specified in paragraph (1) shall
   compile an annual tabulation of the occasions in which this section
   was used.

-SOURCE-

   (Pub. L. 95-630, title XI, Sec. 1114, Nov. 10, 1978, 92 Stat. 3707;
   Pub. L. 97-320, title IV, Sec. 432(b), Oct. 15, 1982, 96 Stat.
   1527; Pub. L. 99-569, title IV, Sec. 404, Oct. 27, 1986, 100 Stat.
   3197.)

-REFTEXT-

                            REFERENCES IN TEXT
     Public Law 90-331, as amended, referred to in subsec. (a)(1)(B),
   is Pub. L. 90-331, June 6, 1968, 82 Stat. 170, as amended, which is
   set out as a note under section 3056 of Title 18, Crimes and
   Criminal Procedure.

-MISC2-

                                AMENDMENTS
     1986 - Subsec. (a)(5). Pub. L. 99-569 added par. (5).
     1982 - Subsec. (b)(2). Pub. L. 97-320 struck out ''of'' after
   ''financial institution''.

-SECREF-

                  SECTION REFERRED TO IN OTHER SECTIONS
     This section is referred to in sections 3402, 3409, 3421 of this
   title.
  __________________________________________________________________________