12 U.S.C. § 3410 — Customer challenges

Page 1540 TITLE 12—BANKS AND BANKING § 3410 stitution named in the attached process or re- quest were supplied to or requested by the Gov- ernment authority named in the process or re- quest on (date). Notification was withheld pur- suant to a determination by the (title of court so ordering) under the Right to Financial Pri- vacy Act of 1978 [12 U.S.C. 3401 et seq.] that such notice might (state reason). The purpose of the investigation or official pro- ceeding was .’’. (c) Notice requirement respecting emergency ac- cess to financial records When access to financial records is obtained pursuant to section 3414(b) of this title (emer- gency access), the Government authority shall, unless a court has authorized delay of notice pursuant to subsections (a) and (b), as soon as practicable after such records are obtained serve upon the customer, or mail by registered or cer- tified mail to his last known address, a copy of the request to the financial institution together with the following notice which shall state with reasonable specificity the nature of the law en- forcement inquiry: ‘‘Records concerning your transactions held by the financial institution named in the at- tached request were obtained by (agency or de- partment) under the Right to Financial Privacy Act of 1978 [12 U.S.C. 3401 et seq.] on (date) for the following purpose: Emergency access to such records was obtained on the grounds that (state grounds).’’. (d) Preservation of memorandums, affidavits, or other papers Any memorandum, affidavit, or other paper filed in connection with a request for delay in notification shall be preserved by the court. Upon petition by the customer to whom such records pertain, the court may order disclosure of such papers to the petitioner unless the court makes the findings required in subsection (a). (Pub. L. 95–630, title XI, § 1109, Nov. 10, 1978, 92 Stat. 3702; Pub. L. 101–650, title III, § 321, Dec. 1, 1990, 104 Stat. 5117.) Editorial Notes REFERENCES IN TEXT The International Emergency Economic Powers Act, referred to in subsec. (b)(1), is title II of Pub. L. 95–223, Dec. 28, 1977, 91 Stat. 1626, which is classified generally to chapter 35 (§ 1701 et seq.) of Title 50, War and Na- tional Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1701 of Title 50 and Tables. The Right to Financial Privacy Act of 1978, referred to in subsecs. (b)(3) 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 CHANGE OF NAME In subsec. (a), ‘‘magistrate judge’’ substituted for ‘‘magistrate’’ pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of Title 28, Judiciary and Judicial Procedure. 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. § 3410. Customer challenges (a) Filing of motion to quash or application to enjoin; proper court; contents Within ten days of service or within fourteen days of mailing of a subpena, summons, or for- mal written request, a customer may file a mo- tion to quash an administrative summons or ju- dicial subpena, or an application to enjoin a Government authority from obtaining financial records pursuant to a formal written request, with copies served upon the Government author- ity. A motion to quash a judicial subpena shall be filed in the court which issued the subpena. A motion to quash an administrative summons or an application to enjoin a Government author- ity from obtaining records pursuant to a formal written request shall be filed in the appropriate United States district court. Such motion or ap- plication shall contain an affidavit or sworn statement— (1) stating that the applicant is a customer of the financial institution from which finan- cial records pertaining to him have been sought; and (2) stating the applicant’s reasons for believ- ing that the financial records sought are not relevant to the legitimate law enforcement in- quiry stated by the Government authority in its notice, or that there has not been substan- tial compliance with the provisions of this chapter. Service shall be made under this section upon a Government authority by delivering or mailing by registered or certified mail a copy of the pa- pers to the person, office, or department speci- fied in the notice which the customer has re- ceived pursuant to this chapter. For the pur- poses of this section, ‘‘delivery’’ has the mean- ing stated in rule 5(b) of the Federal Rules of Civil Procedure. (b) Filing of response; additional proceedings If the court finds that the customer has com- plied with subsection (a), it shall order the Gov- ernment authority to file a sworn response, which may be filed in camera if the Government includes in its response the reasons which make in camera review appropriate. If the court is un- able to determine the motion or application on the basis of the parties’ initial allegations and response, the court may conduct such additional proceedings as it deems appropriate. All such proceedings shall be completed and the motion or application decided within seven calendar days of the filing of the Government’s response. (c) Decision of court If the court finds that the applicant is not the customer to whom the financial records sought by the Government authority pertain, or that there is a demonstrable reason to believe that the law enforcement inquiry is legitimate and a reasonable belief that the records sought are rel- evant to that inquiry, it shall deny the motion or application, and, in the case of an administra- tive summons or court order other than a search Page 1541 TITLE 12—BANKS AND BANKING § 3412 1 So in original. Section does not contain a clause (A). warrant, order such process enforced. If the court finds that the applicant is the customer to whom the records sought by the Government au- thority pertain, and that there is not a demon- strable reason to believe that the law enforce- ment inquiry is legitimate and a reasonable be- lief that the records sought are relevant to that inquiry, or that there has not been substantial compliance with the provisions of this chapter, it shall order the process quashed or shall enjoin the Government authority’s formal written re- quest. (d) Appeals A court ruling denying a motion or applica- tion under this section shall not be deemed a final order and no interlocutory appeal may be taken therefrom by the customer. An appeal of a ruling denying a motion or application under this section may be taken by the customer (1) within such period of time as provided by law as part of any appeal from a final order in any legal proceeding initiated against him arising out of or based upon the financial records, or (2) within thirty days after a notification that no legal proceeding is contemplated against him. The Government authority obtaining the finan- cial records shall promptly notify a customer when a determination has been made that no legal proceeding against him is contemplated. After one hundred and eighty days from the de- nial of the motion or application, if the Govern- ment authority obtaining the records has not initiated such a proceeding, a supervisory offi- cial of the Government authority shall certify to the appropriate court that no such deter- mination has been made. The court may require that such certifications be made, at reasonable intervals thereafter, until either notification to the customer has occurred or a legal proceeding is initiated as described in clause (A). 1 (e) Sole judicial remedy available to customer The challenge procedures of this chapter con- stitute the sole judicial remedy available to a customer to oppose disclosure of financial rec- ords pursuant to this chapter. (f) Affect on challenges by financial institutions Nothing in this chapter shall enlarge or re- strict any rights of a financial institution to challenge requests for records made by a Gov- ernment authority under existing law. Nothing in this chapter shall entitle a customer to assert the rights of a financial institution. (Pub. L. 95–630, title XI, § 1110, Nov. 10, 1978, 92 Stat. 3703.) Editorial Notes REFERENCES IN TEXT Rule 5(b) of the Federal Rules of Civil Procedure, re- ferred to in subsec. (a), is set out in the Appendix to Title 28, Judiciary and Judicial Procedure. 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. § 3411. Duty of financial institutions Upon receipt of a request for financial records made by a Government authority under section 3405 or 3407 of this title, the financial institution shall, unless otherwise provided by law, proceed to assemble the records requested and must be prepared to deliver the records to the Govern- ment authority upon receipt of the certificate required under section 3403(b) of this title. (Pub. L. 95–630, title XI, § 1111, Nov. 10, 1978, 92 Stat. 3705.) 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. § 3412. Use of information (a) Transfer of financial records to other agen- cies or departments; certification Financial records originally obtained pursuant to this chapter shall not be transferred to an- other agency or department unless the transfer- ring agency or department certifies in writing that there is reason to believe that the records are relevant to a legitimate law enforcement in- quiry, or intelligence or counterintelligence ac- tivity, investigation or analysis related to inter- national terrorism within the jurisdiction of the receiving agency or department. (b) Mailing of copy of certification and notice to customer When financial records subject to this chapter are transferred pursuant to subsection (a), the transferring agency or department shall, within fourteen days, send to the customer a copy of the certification made pursuant to subsection (a) and the following notice, which shall state the nature of the law enforcement inquiry with reasonable specificity: ‘‘Copies of, or informa- tion contained in, your financial records law- fully in possession of have been furnished to pursuant to the Right of Financial Privacy Act of 1978 [12 U.S.C. 3401 et seq.] for the following purpose: . If you believe that this transfer has not been made to further a legitimate law enforcement inquiry, you may have legal rights under the Financial Privacy Act of 1978 or the Privacy Act of 1974 [5 U.S.C. 552a].’’ (c) Court-ordered delays in mailing Notwithstanding subsection (b), notice to the customer may be delayed if the transferring agency or department has obtained a court order delaying notice pursuant to section 3409(a) and (b) of this title and that order is still in ef- fect, or if the receiving agency or department obtains a court order authorizing a delay in no- tice pursuant to section 3409(a) and (b) of this title. Upon the expiration of any such period of delay, the transferring agency or department shall serve to the customer the notice specified in subsection (b) and the agency or department that obtained the court order authorizing a delay in notice pursuant to section 3409(a) and (b) of this title shall serve to the customer the notice specified in section 3409(b) of this title.