From: Greg Broiles <gbroiles@netbox.com>
Date: Thu, 26 Nov 1998 07:35:42 +0800
To: Tim May <cypherpunks@cyberpass.net
Subject: Bank record privacy
In-Reply-To: <365C3CDB.6F34@lsil.com>
Message-ID: <4.1.19981125144737.03a03cf0@gabber.c2.net>
MIME-Version: 1.0
Content-Type: text/plain



At 01:31 PM 11/25/98 -0800, Tim May wrote:

>I'm not approving of the Feds examining the records of banks, only noting
>that the Fourth is not implicated here. From what I know of the law.
>
>(Legal beagles would probably mutter about a penumbra of the Fourth, an
>expectation of privacy, etc.)

No quibbles from me, Tim is correct. Bank record privacy for individuals
and small (< 5 partners) partnerships is governed by the Financial Privacy
Act of 1978 (12 USC 3401 et seq). I've got a short discussion of it online
as part of a larger (and incomplete) survey of federal privacy statutes at
<http://www.parrhesia.com/fedpriv.html>. There are cites to a few of the
bigger/older bank record privacy cases there, if people are interested in
reading further. 

Don't expect confidentiality against the government from a US-chartered
(federal or state) financial institution; you may be able to extract money
from the bank following a disclosure which didn't conform to the
complicated rules for disclosures, but banks are in the business of keeping
cops and shareholders, not customers, happy. There's no real risk that
customers will switch banks because of poor privacy policies because
they've all got the same policies. 

As a general rule, there's no protected/significant expectation of privacy
in information which is disclosed to third parties, absent a special
relationship which would preserve that privacy. The class of special
relationships (roughly, spouse, attorney, doctor, minister) is based on
history/custom and legislation, so you can't create a new one just because
you want to - not even with a contract, because the other party can be
compelled to disclose the information (despite the contract) by subpoena or
via a search warrant. (The Fifth Amendment would only bar such compelled
disclosure if the information tended to incriminate the disclosing party,
and the disclosing party were a natural person, not a corporation.) 


--
Greg Broiles        |History teaches that 'Trust us'
gbroiles@netbox.com |is no guarantee of due process.
                    |_Kasler v. Lundgren_, 98 CDOS 1581
                    |(March 4, 1998)