12 U.S.C. § 3414 — Special procedures

Page 1546 TITLE 12—BANKS AND BANKING § 3414 1 See References in Text note below. further details and complete classification of this Act to the Code, see Codification note set out preceding section 231 of Title 45, section 231t of Title 45, and Ta- bles. CODIFICATION Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246. AMENDMENTS 2010—Subsec. (r). Pub. L. 111–203 added subsec. (r). 2008—Subsec. (k). Pub. L. 110–246, § 14205, inserted heading, added pars. (2) and (3), and struck out former par. (2) which read as follows: ‘‘Notwithstanding any other provision of law, any request authorized by para- graph (1) (and the information contained therein) may be used by the financial institution or its agents solely for the purpose of providing the customer’s name and address to the Department of the Treasury, the Social Security Administration, or the Railroad Retirement Board and shall be barred from redisclosure by the fi- nancial institution or its agents.’’ Subsec. (o). Pub. L. 110–289 substituted ‘‘Federal Housing Finance Agency’’ for ‘‘Federal Housing Fi- nance Board’’ and ‘‘Federal Housing Finance Agency’s’’ for ‘‘Federal Housing Finance Board’s’’. 2004—Subsec. (j). Pub. L. 108–271 substituted ‘‘Govern- ment Accountability Office’’ for ‘‘General Accounting Office’’. 1998—Subsec. (q). Pub. L. 105–264 added subsec. (q). 1992—Subsec. (p). Pub. L. 102–568 added subsec. (p). 1991—Subsec. (h)(1)(A), (4). Pub. L. 102–242, § 411(2), (3), substituted ‘‘a financial institution (whether or not such proceeding, investigation, examination, or inspec- tion is also directed at a customer)’’ for ‘‘the financial institution in possession of such records’’. Subsec. (l). Pub. L. 102–242, § 411(4), inserted at end ‘‘No supervisory agency which transfers any such record under this subsection shall be deemed to have waived any privilege applicable to that record under law.’’ 1990—Subsec. (l)(2). Pub. L. 101–647 inserted before pe- riod at end ‘‘or of section 1956 or 1957 of title 18’’. 1989—Subsec. (b). Pub. L. 101–73, § 942(1), amended sub- sec. (b) generally. Prior to amendment, subsec. (b) read as follows: ‘‘Nothing in this chapter prohibits examina- tion by or disclosure to any supervisory agency of fi- nancial records or information in the exercise of its su- pervisory, regulatory, or monetary functions with re- spect to a financial institution.’’ Subsecs. (m) to (o). Pub. L. 101–73, § 942(2), added sub- secs. (m) to (o). 1988—Subsec. (l). Pub. L. 100–690 added subsec. (l). 1986—Subsec. (c). Pub. L. 99–514 substituted ‘‘Internal Revenue Code of 1986’’ for ‘‘Internal Revenue Code of 1954’’, which for purposes of codification was translated as ‘‘title 26’’ thus requiring no change in text. Subsec. (i). Pub. L. 99–570 inserted ‘‘, except that a court shall have authority to order a financial institu- tion, on which a grand jury subpoena for customer records has been served, not to notify the customer of the existence of the subpoena or information that has been furnished to the grand jury, under the cir- cumstances and for the period specified and pursuant to the procedures established in section 3409 of this title’’. Subsec. (k)(1). Pub. L. 99–514 substituted ‘‘Internal Revenue Code of 1986’’ for ‘‘Internal Revenue Code of 1954’’, which for purposes of codification was translated as ‘‘title 26’’ thus requiring no change in text. 1983—Subsec. (k). Pub. L. 98–21 added subsec. (k). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2010 AMENDMENT Amendment by Pub. L. 111–203 effective on the des- ignated transfer date, see section 1100H of Pub. L. 111–203, set out as a note under section 552a of Title 5, Government Organization and Employees. EFFECTIVE DATE OF 2008 AMENDMENT Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of Title 7, Agriculture. EFFECTIVE DATE OF 1998 AMENDMENT Amendment by Pub. L. 105–264 effective Oct. 1, 1983, and applicable to any records created pursuant to United States Travel and Transportation Payment and Expense Control System or any Federal contractor- issued travel charge card issued for official Govern- ment travel, see section 2(c)(2) of Pub. L. 105–264, set out as a Requiring Use of Travel Charge Card note under section 5701 of Title 5, Government Organization and Employees. EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 98–21 applicable to benefits re- ceived after Dec. 31, 1983, in taxable years ending after such date, except for any portion of a lump-sum pay- ment of social security benefits received after Dec. 31, 1983, if the generally applicable payment date for such portion was before Jan. 1, 1984, see section 121(g) of Pub. L. 98–21, set out as an Effective Date note under section 86 of Title 26, Internal Revenue Code. 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. § 3414. Special procedures (a) Access to financial records for certain intel- ligence and protective purposes (1) Nothing in this chapter (except sections 3415, 3417, 3418, and 3421 1 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 con- ducting such activities; (B) the Secret Service for the purpose of con- ducting its protective functions (18 U.S.C. 3056; 18 U.S.C. 3056A, Public Law 90–331,1 as amend- ed); or (C) a Government authority authorized to conduct investigations of, or intelligence or counterintelligence analyses related to, inter- national terrorism for the purpose of con- ducting such investigations or analyses. (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 super- visory official of a rank designated by the head of the Government authority and a term that specifically identifies a customer, entity, or ac- count to be used as the basis for the production and disclosure of financial records. (3)(A) If the Government authority described in paragraph (1) or the Secret Service, as the case may be, certifies that otherwise there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence inves- tigation, interference with diplomatic relations, or danger to the life or physical safety of any Page 1547 TITLE 12—BANKS AND BANKING § 3414 2 So in original. Probably should be ‘‘counterintelligence’’. person, no financial institution, or officer, em- ployee, or agent of such institution, shall dis- close to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Government authority or the Secret Service has sought or obtained access to a cus- tomer’s financial records. (B) The request shall notify the person or enti- ty to whom the request is directed of the non- disclosure requirement under subparagraph (A). (C) Any recipient disclosing to those persons necessary to comply with the request or to an attorney to obtain legal advice or legal assist- ance with respect to the request shall inform such persons of any applicable nondisclosure re- quirement. Any person who receives a disclosure under this subsection shall be subject to the same prohibitions on disclosure under subpara- graph (A). (D) At the request of the authorized Govern- ment authority or the Secret Service, any per- son making or intending to make a disclosure under this section shall identify to the request- ing official of the authorized Government au- thority or the Secret Service the person to whom such disclosure will be made or to whom such disclosure was made prior to the request, except that nothing in this section shall require a person to inform the requesting official of the authorized Government authority or the Secret Service of the identity of an attorney to whom disclosure was made or will be made to obtain legal advice or legal assistance with respect to the request for financial records under this sub- section. (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, em- ployees, 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 Direc- tor of the Federal Bureau of Investigation (or the Director’s designee in a position not lower than Deputy Assistant Director at Bureau head- quarters or a Special Agent in Charge in a Bu- reau field office designated by the Director) cer- tifies in writing to the financial institution that such records are sought for foreign counter in- telligence 2 purposes to protect against inter- national terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted sole- ly upon the basis of activities protected by the first amendment to the Constitution of the United States. (B) The Federal Bureau of Investigation may disseminate information obtained pursuant to this paragraph only as provided in guidelines ap- proved by the Attorney General for foreign in- telligence collection and foreign counterintel- ligence 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 rel- evant to the authorized responsibilities of such agency. (C) On the dates provided in section 3106 of title 50, the Attorney General shall fully inform the congressional intelligence committees (as defined in section 3003 of title 50) concerning all requests made pursuant to this paragraph. (b) Emergency access to financial records (1) Nothing in this chapter shall prohibit a Government authority from obtaining financial records from a financial institution if the Gov- ernment authority determines that delay in ob- taining access to such records would create im- minent 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 in- stitution the certificate required in section 3403(b) of this title signed by a supervisory offi- cial of a rank designated by the head of the Gov- ernment authority. (3) Within five days of obtaining access to fi- nancial records under this subsection, the Gov- ernment authority shall file with the appro- priate court a signed, sworn statement of a su- pervisory official of a rank designated by the head of the Government authority setting forth the grounds for the emergency access. The Gov- ernment 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. (c) Prohibition of certain disclosure (1) Prohibition (A) In general If a certification is issued under subpara- graph (B) and notice of the right to judicial review under subsection (d) is provided, no financial institution that receives a request under subsection (a), or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under subsection (a). (B) Certification The requirements of subparagraph (A) shall apply if the Director of the Federal Bu- reau of Investigation, or a designee of the Director whose rank shall be no lower than Deputy Assistant Director at Bureau head- quarters or a Special Agent in Charge of a Bureau field office, certifies that the absence of a prohibition of disclosure under this sub- section may result in— (i) a danger to the national security of the United States; (ii) interference with a criminal, counterterrorism, or counterintelligence investigation; (iii) interference with diplomatic rela- tions; or (iv) danger to the life or physical safety of any person. (2) Exception (A) In general A financial institution that receives a re- quest under subsection (a), or officer, em- Page 1548 TITLE 12—BANKS AND BANKING § 3414 ployee, or agent thereof, may disclose infor- mation otherwise subject to any applicable nondisclosure requirement to— (i) those persons to whom disclosure is necessary in order to comply with the re- quest; (ii) an attorney in order to obtain legal advice or assistance regarding the request; or (iii) other persons as permitted by the Director of the Federal Bureau of Inves- tigation or the designee of the Director. (B) Application A person to whom disclosure is made under subparagraph (A) shall be subject to the non- disclosure requirements applicable to a per- son to whom a request is issued under sub- section (a) in the same manner as the person to whom the request is issued. (C) Notice Any recipient that discloses to a person described in subparagraph (A) information otherwise subject to a nondisclosure require- ment shall inform the person of the applica- ble nondisclosure requirement. (D) Identification of disclosure recipients At the request of the Director of the Fed- eral Bureau of Investigation or the designee of the Director, any person making or in- tending to make a disclosure under clause (i) or (iii) of subparagraph (A) shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request. (d) Judicial review (1) In general A request under subsection (a) or a non- disclosure requirement imposed in connection with such request under subsection (c) shall be subject to judicial review under section 3511 of title 18. (2) Notice A request under subsection (a) shall include notice of the availability of judicial review de- scribed in paragraph (1). (e) Definition of ‘‘financial institution’’ For purposes of this section, and sections 3415 and 3417 of this title insofar as they relate to the operation of this section, the term ‘‘financial in- stitution’’ has the same meaning as in sub- sections (a)(2) and (c)(1) of section 5312 of title 31, except that, for purposes of this section, such term shall include only such a financial institu- tion any part of which is located inside any State or territory of the United States, the Dis- trict of Columbia, Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, or the United States Virgin Is- lands. (Pub. L. 95–630, title XI, § 1114, Nov. 10, 1978, 92 Stat. 3707; Pub. L. 97–320, title IV, § 432(b), Oct. 15, 1982, 96 Stat. 1527; Pub. L. 99–569, title IV, § 404, Oct. 27, 1986, 100 Stat. 3197; Pub. L. 107–56, title III, § 358(f)(2), title V, § 505(b), Oct. 26, 2001, 115 Stat. 327, 365; Pub. L. 107–306, title VIII, § 811(b)(9), Nov. 27, 2002, 116 Stat. 2426; Pub. L. 108–177, title III, § 374(a), Dec. 13, 2003, 117 Stat. 2628; Pub. L. 109–177, title I, § 116(d), (e), title VI, § 605(e)(1), Mar. 9, 2006, 120 Stat. 215, 216, 255; Pub. L. 109–178, § 4(d), Mar. 9, 2006, 120 Stat. 280; Pub. L. 114–23, title V, §§ 501(b), 502(b), 503(b), June 2, 2015, 129 Stat. 282, 284, 290.) Editorial Notes REFERENCES IN TEXT Section 3421 of this title, referred to in subsec. (a)(1), was repealed by Pub. L. 104–66, title III, § 3001(d), Dec. 21, 1995, 109 Stat. 734. Public Law 90–331, as amended, referred to in subsec. (a)(1)(B), is Pub. L. 90–331, June 6, 1968, 82 Stat. 170, which was set out as a note under section 3056 of Title 18, Crimes and Criminal Procedure, prior to repeal by Pub. L. 98–587, § 2, Oct. 30, 1984, 98 Stat. 3111. See 18 U.S.C. 3056(a)(7). AMENDMENTS 2015—Subsec. (a)(2). Pub. L. 114–23, § 501(b), inserted before period at end ‘‘and a term that specifically iden- tifies a customer, entity, or account to be used as the basis for the production and disclosure of financial records’’. Subsec. (a)(5)(D). Pub. L. 114–23, § 502(b)(1), struck out subpar. (D) which related to prohibition of certain dis- closure. Subsec. (c). Pub. L. 114–23, § 502(b)(2), added subsec. (c). Subsecs. (d), (e). Pub. L. 114–23, § 503(b), added subsec. (d) and redesignated former subsec. (d) as (e). 2006—Subsec. (a)(1)(B). Pub. L. 109–177, § 605(e)(1), which directed the amendment of section 3414 of title 12, United States Code, by substituting ‘‘18 U.S.C. 3056A’’ for ‘‘3 U.S.C. 202’’ in subsec. (a)(1)(B), was exe- cuted to this section, which is section 1114 of the Right to Financial Privacy Act of 1978, to reflect the probable intent of Congress. Subsec. (a)(3). Pub. L. 109–177, § 116(d), which directed the general amendment of section 1114(a)(3) of the Right to Financial Privacy Act, was executed to sub- sec. (a)(3) of this section, which is section 1114 of the Right to Financial Privacy Act of 1978, to reflect the probable intent of Congress. Prior to amendment, par. (3) read as follows: ‘‘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 cus- tomer’s financial records.’’ Subsec. (a)(3)(D). Pub. L. 109–178, § 4(d)(1), which di- rected the general amendment of subsec. (a)(3)(D) of section 1114(a)(3) of the Right to Financial Privacy Act, was executed to subsec. (a)(3)(D) of this section, which is section 1114 of the Right to Financial Privacy Act of 1978, to reflect the probable intent of Congress. Prior to amendment, subpar. (D) read as follows: ‘‘At the re- quest of the authorized Government agency or the Se- cret Service, any person making or intending to make a disclosure under this section shall identify to the re- questing official of the authorized Government agency or the Secret Service the person to whom such disclo- sure will be made or to whom such disclosure was made prior to the request, but in no circumstance shall a per- son be required to inform such requesting official that the person intends to consult an attorney to obtain legal advice or legal assistance.’’ Subsec. (a)(5)(D). Pub. L. 109–177, § 116(e), which di- rected the general amendment of section 1114(a)(5)(D) of the Right to Financial Privacy Act, was executed to subsec. (a)(5)(D) of this section, which is section 1114 of the Right to Financial Privacy Act of 1978, to reflect the probable intent of Congress. Prior to amendment, subpar. (D) read as follows: ‘‘No financial institution, or officer, employee, or agent of such institution, shall disclose to any person that the Federal Bureau of In- Page 1549 TITLE 12—BANKS AND BANKING § 3416 vestigation has sought or obtained access to a cus- tomer’s or entity’s financial records under this para- graph.’’ Subsec. (a)(5)(D)(iv). Pub. L. 109–178, § 4(d)(2), which directed the general amendment of clause (iv) of sec- tion 1114(a)(5)(D) of the Right to Financial Privacy Act, was executed to clause (iv) of subsec. (a)(5)(D) of this section, which is section 1114 of the Right to Financial Privacy Act of 1978, to reflect the probable intent of Congress. Prior to amendment, cl. (iv) read as follows: ‘‘At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under this section shall identify to the Director or such des- ignee the person to whom such disclosure will be made or to whom such disclosure was made prior to the re- quest, but in no circumstance shall a person be re- quired to inform the Director or such designee that the person intends to consult an attorney to obtain legal advice or legal assistance.’’ 2003—Subsec. (d). Pub. L. 108–177 added subsec. (d). 2002—Subsec. (a)(5)(C). Pub. L. 107–306 substituted ‘‘On the dates provided in section 415b of title 50, the Attorney General shall fully inform the congressional intelligence committees (as defined in section 401a of title 50)’’ for ‘‘On a semiannual basis the Attorney Gen- eral shall fully inform the Permanent Select Com- mittee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Sen- ate’’. 2001—Subsec. (a)(1)(C). Pub. L. 107–56, § 358(f)(2), added subpar. (C). Subsec. (a)(5)(A). Pub. L. 107–56, § 505(b), inserted ‘‘in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director’’ after ‘‘Director’s designee’’ and substituted ‘‘sought for for- eign counter intelligence purposes to protect against international terrorism or clandestine intelligence ac- tivities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Con- stitution of the United States’’ for ‘‘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 for- eign power or an agent of a foreign power as defined in section 1801 of title 50’’. 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’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109–178, Mar. 9, 2006, 120 Stat. 282, provided in part that: ‘‘This Act [amending this section, sections 1681u and 1681v of Title 15, Commerce and Trade, sec- tion 2709 of Title 18, Crimes and Criminal Procedure, and sections 436 and 1861 of Title 50, War and National Defense, and enacting provisions set out as a note under section 1 of Title 18] shall become effective im- mediately upon enactment [Mar. 9, 2006].’’ EFFECTIVE DATE OF 2001 AMENDMENT Amendment by section 358(f)(2) of Pub. L. 107–56 ap- plicable with respect to reports filed or records main- tained on, before, or after Oct. 26, 2001, see section 358(h) of Pub. L. 107–56, set out as a note under section 1829b of this title. 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. TRANSFER OF FUNCTIONS For transfer of the functions, personnel, assets, and obligations of the United States Secret Service, includ- ing the functions of the Secretary of the Treasury re- lating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 381, 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganiza- tion Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. TERMINATION PROCEDURES Pub. L. 114–23, title V, § 502(f), June 2, 2015, 129 Stat. 288, provided that: ‘‘(1) IN GENERAL.—Not later than 180 days after the date of enactment of this Act [June 2, 2015], the Attor- ney General shall adopt procedures with respect to non- disclosure requirements issued pursuant to section 2709 of title 18, United States Code, section 626 or 627 of the Fair Credit Reporting Act (15 U.S.C. 1681u and 1681v), section 1114 of the Right to Financial Privacy Act [of 1978] (12 U.S.C. 3414), or section 802 of the National Se- curity Act of 1947 (50 U.S.C. 3162), as amended by this Act, to require— ‘‘(A) the review at appropriate intervals of such a nondisclosure requirement to assess whether the facts supporting nondisclosure continue to exist; ‘‘(B) the termination of such a nondisclosure re- quirement if the facts no longer support nondisclo- sure; and ‘‘(C) appropriate notice to the recipient of the na- tional security letter, or officer, employee, or agent thereof, subject to the nondisclosure requirement, and the applicable court as appropriate, that the non- disclosure requirement has been terminated. ‘‘(2) REPORTING.—Upon adopting the procedures re- quired under paragraph (1), the Attorney General shall submit the procedures to the Committee on the Judici- ary of the Senate and the Committee on the Judiciary of the House of Representatives.’’ § 3415. Cost reimbursement Except for records obtained pursuant to sec- tion 3403(d) or 3413(a) through (h) of this title, or as otherwise provided by law, a Government au- thority shall pay to the financial institution as- sembling or providing financial records per- taining to a customer and in accordance with procedures established by this chapter a fee for reimbursement for such costs as are reasonably necessary and which have been directly incurred in searching for, reproducing, or transporting books, papers, records, or other data required or requested to be produced. The Board of Gov- ernors of the Federal Reserve System shall, by regulation, establish the rates and conditions under which such payment may be made. (Pub. L. 95–630, title XI, § 1115(a), Nov. 10, 1978, 92 Stat. 3708.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 95–630, title XI, § 1115(b), Nov. 10, 1978, 92 Stat. 3708, provided that: ‘‘This section shall take effect on October 1, 1979.’’ § 3416. Jurisdiction An action to enforce any provision of this chapter may be brought in any appropriate United States district court without regard to the amount in controversy within three years from the date on which the violation occurs or the date of discovery of such violation, which- ever is later. (Pub. L. 95–630, title XI, § 1116, Nov. 10, 1978, 92 Stat. 3708.)