12 U.S.C. § 3406 — Search warrants

Page 1537 TITLE 12—BANKS AND BANKING § 3406 identity of the Government authority to which such disclosure is made. (Pub. L. 95–630, title XI, § 1104, Nov. 10, 1978, 92 Stat. 3698; Pub. L. 96–3, Mar. 7, 1979, 93 Stat. 5.) Editorial Notes AMENDMENTS 1979—Subsec. (d). Pub. L. 96–3 struck out subsec. (d) which had directed that all financial institutions promptly notify all of their customers of their rights under this chapter, that the Board of Governors of the Federal Reserve System prepare a statement of cus- tomers’ rights under this chapter, and that the sup- plying of such a statement to their customers by the fi- nancial institutions be deemed compliance with the no- tification requirement. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective upon the expiration of 120 days after Nov. 10, 1978, see section 2101 of Pub. L. 95–630, set out as a note under section 375b of this title. § 3405. Administrative subpena and summons A Government authority may obtain financial records under section 3402(2) of this title pursu- ant to an administrative subpena or summons otherwise authorized by law only if— (1) there is reason to believe that the records sought are relevant to a legitimate law en- forcement inquiry; (2) a copy of the subpena or summons has been served upon the customer or mailed to his last known address on or before the date on which the subpena or summons was served on the financial institution together with the following notice which shall state with reason- able specificity the nature of the law enforce- ment inquiry: ‘‘Records or information concerning your transactions held by the financial institution named in the attached subpena or summons are being sought by this (agency or depart- ment) in accordance with the Right to Finan- cial Privacy Act of 1978 [12 U.S.C. 3401 et seq.] for the following purpose: If you desire that such records or information not be made avail- able, you must: ‘‘1. Fill out the accompanying motion paper and sworn statement or write one of your own, stating that you are the customer whose records are being requested by the Government and either giving the reasons you believe that the records are not relevant to the legitimate law enforcement inquiry stated in this notice or any other legal basis for objecting to the release of the records. ‘‘2. File the motion and statement by mailing or delivering them to the clerk of any one of the following United States dis- trict courts: . ‘‘3. Serve the Government authority re- questing the records by mailing or deliv- ering a copy of your motion and statement to . ‘‘4. Be prepared to come to court and pre- sent your position in further detail. ‘‘5. You do not need to have a lawyer, al- though you may wish to employ one to rep- resent you and protect your rights. If you do not follow the above procedures, upon the expiration of ten days from the date of service or fourteen days from the date of mailing of this notice, the records or informa- tion requested therein will be made available. These records may be transferred to other Government authorities for legitimate law en- forcement inquiries, in which event you will be notified after the transfer.’’; and (3) ten days have expired from the date of service of the notice or fourteen days have ex- pired from the date of mailing the notice to the customer and within such time period the customer has not filed a sworn statement and motion to quash in an appropriate court, or the customer challenge provisions of section 3410 of this title have been complied with. (Pub. L. 95–630, title XI, § 1105, Nov. 10, 1978, 92 Stat. 3699.) Editorial Notes REFERENCES IN TEXT The Right to Financial Privacy Act of 1978, referred to in par. (2), is title XI of Pub. L. 95–630, Nov. 10, 1978, 92 Stat. 3697, which is classified generally to this chap- ter (§ 3401 et seq.). For complete classification of this Act to the Code, see Short Title note set out under sec- tion 3401 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective upon the expiration of 120 days after Nov. 10, 1978, see section 2101 of Pub. L. 95–630, set out as a note under section 375b of this title. § 3406. Search warrants (a) Applicability of Federal Rules of Criminal Procedure A Government authority may obtain financial records under section 3402(3) of this title only if it obtains a search warrant pursuant to the Fed- eral Rules of Criminal Procedure. (b) Mailing of copy and notice to customer No later than ninety days after the Govern- ment authority serves the search warrant, it shall mail to the customer’s last known address a copy of the search warrant together with the following notice: ‘‘Records or information concerning your transactions held by the financial institution named in the attached search warrant were ob- tained by this (agency or department) on (date) for the following purpose: . You may have rights under the Right to Financial Privacy Act of 1978 [12 U.S.C. 3401 et seq.].’’. (c) Court-ordered delays in mailing Upon application of the Government author- ity, a court may grant a delay in the mailing of the notice required in subsection (b), which delay shall not exceed one hundred and eighty days following the service of the warrant, if the court makes the findings required in section 3409(a) of this title. If the court so finds, it shall enter an ex parte order granting the requested delay and an order prohibiting the financial in- stitution from disclosing that records have been obtained or that a search warrant for such Page 1538 TITLE 12—BANKS AND BANKING § 3407 records has been executed. Additional delays of up to ninety days may be granted by the court upon application, but only in accordance with this subsection. Upon expiration of the period of delay of notification of the customer, the fol- lowing notice shall be mailed to the customer along with a copy of the search warrant: ‘‘Records or information concerning your transactions held by the financial institution named in the attached search warrant were ob- tained by this (agency or department) on (date). Notification was delayed beyond the statutory ninety-day delay period pursuant to a deter- mination by the court that such notice would seriously jeopardize an investigation concerning . You may have rights under the Right to Financial Privacy Act of 1978 [12 U.S.C. 3401 et seq.].’’. (Pub. L. 95–630, title XI, § 1106, Nov. 10, 1978, 92 Stat. 3700.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Criminal Procedure, referred to in subsec. (a), are set out in the Appendix to Title 18, Crimes and Criminal Procedure. The Right to Financial Privacy Act of 1978, referred to in subsecs. (b) and (c), is title XI of Pub. L. 95–630, Nov. 10, 1978, 92 Stat. 3697, which is classified generally to this chapter (§ 3401 et seq.). For complete classifica- tion of this Act to the Code, see Short Title note set out under section 3401 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective upon the expiration of 120 days after Nov. 10, 1978, see section 2101 of Pub. L. 95–630, set out as a note under section 375b of this title. § 3407. Judicial subpena A Government authority may obtain financial records under section 3402(4) of this title pursu- ant to judicial subpena only if— (1) such subpena is authorized by law and there is reason to believe that the records sought are relevant to a legitimate law en- forcement inquiry; (2) a copy of the subpena has been served upon the customer or mailed to his last known address on or before the date on which the sub- pena was served on the financial institution together with the following notice which shall state with reasonable specificity the nature of the law enforcement inquiry: ‘‘Records or information concerning your transactions which are held by the financial institution named in the attached subpena are being sought by this (agency or department or authority) in accordance with the Right to Fi- nancial Privacy Act of 1978 [12 U.S.C. 3401 et seq.] for the following purpose: If you desire that such records or information not be made available, you must: ‘‘1. Fill out the accompanying motion paper and sworn statement or write one of your own, stating that you are the customer whose records are being requested by the Government and either giving the reasons you believe that the records are not relevant to the legitimate law enforcement inquiry stated in this notice or any other legal basis for objecting to the release of the records. ‘‘2. File the motion and statement by mailing or delivering them to the clerk of the Court. ‘‘3. Serve the Government authority re- questing the records by mailing or deliv- ering a copy of your motion and statement to . ‘‘4. Be prepared to come to court and pre- sent your position in further detail. ‘‘5. You do not need to have a lawyer, al- though you may wish to employ one to rep- resent you and protect your rights. If you do not follow the above procedures, upon the expiration of ten days from the date of service or fourteen days from the date of mailing of this notice, the records or informa- tion requested therein will be made available. These records may be transferred to other gov- ernment authorities for legitimate law en- forcement inquiries, in which event you will be notified after the transfer;’’ and (3) ten days have expired from the date of service or fourteen days from the date of mail- ing of the notice to the customer and within such time period the customer has not filed a sworn statement and motion to quash in an appropriate court, or the customer challenge provisions of section 3410 of this title have been complied with. (Pub. L. 95–630, title XI, § 1107, Nov. 10, 1978, 92 Stat. 3700.) Editorial Notes REFERENCES IN TEXT The Right to Financial Privacy Act of 1978, referred to in par. (2), is title XI of Pub. L. 95–630, Nov. 10, 1978, 92 Stat. 3697, which is classified generally to this chap- ter (§ 3401 et seq.). For complete classification of this Act to the Code, see Short Title note set out under sec- tion 3401 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective upon the expiration of 120 days after Nov. 10, 1978, see section 2101 of Pub. L. 95–630, set out as a note under section 375b of this title. § 3408. Formal written request A Government authority may request finan- cial records under section 3402(5) of this title pursuant to a formal written request only if— (1) no administrative summons or subpena authority reasonably appears to be available to that Government authority to obtain finan- cial records for the purpose for which such records are sought; (2) the request is authorized by regulations promulgated by the head of the agency or de- partment; (3) there is reason to believe that the records sought are relevant to a legitimate law en- forcement inquiry; and (4)(A) a copy of the request has been served upon the customer or mailed to his last known address on or before the date on which the re- quest was made to the financial institution to-