12 U.S.C. § 3409 — Delayed notice

Page 1539 TITLE 12—BANKS AND BANKING § 3409 1 So in original. Probably should be ‘‘preceding’’. gether with the following notice which shall state with reasonable specificity the nature of the law enforcement inquiry: ‘‘Records or information concerning your transactions held by the financial institution named in the attached request are being sought by this (agency or department) in ac- cordance with the Right to Financial Privacy Act of 1978 [12 U.S.C. 3401 et seq.] for the fol- lowing purpose: ‘‘If you desire that such records or informa- tion 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 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 may 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 (B) ten days have expired from the date of service or fourteen days from the date of mail- ing of the notice by the customer and within such time period the customer has not filed a sworn statement and an application to enjoin the Government authority 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, § 1108, Nov. 10, 1978, 92 Stat. 3701.) Editorial Notes REFERENCES IN TEXT The Right to Financial Privacy Act of 1978, referred to in par. (4), 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. § 3409. Delayed notice (a) Application by Government authority; find- ings Upon application of the Government author- ity, the customer notice required under section 3404(c), 3405(2), 3406(c), 3407(2), 3408(4), or 3412(b) of this title may be delayed by order of an ap- propriate court if the presiding judge or mag- istrate judge finds that— (1) the investigation being conducted is within the lawful jurisdiction of the Govern- ment authority seeking the financial records; (2) there is reason to believe that the records being sought are relevant to a legitimate law enforcement inquiry; and (3) there is reason to believe that such no- tice will result in— (A) endangering life or physical safety of any person; (B) flight from prosecution; (C) destruction of or tampering with evi- dence; (D) intimidation of potential witnesses; or (E) otherwise seriously jeopardizing an in- vestigation or official proceeding or unduly delaying a trial or ongoing official pro- ceeding to the same extent as the cir- cumstances in the preceeding 1 subpara- graphs. An application for delay must be made with rea- sonable specificity. (b) Grant of delay order; duration and specifica- tions; extensions; copy of request and notice to customer (1) If the court makes the findings required in paragraphs (1), (2), and (3) of subsection (a), it shall enter an ex parte order granting the re- quested delay for a period not to exceed ninety days and an order prohibiting the financial in- stitution from disclosing that records have been obtained or that a request for records has been made, except that, if the records have been sought by a Government authority exercising fi- nancial controls over foreign accounts in the United States under section 4305(b) of title 50, the International Emergency Economic Powers Act (title II, Public Law 95–223) [50 U.S.C. 1701 et seq.], or section 287c of title 22, and the court finds that there is reason to believe that such notice may endanger the lives or physical safety of a customer or group of customers, or any per- son or group of persons associated with a cus- tomer, the court may specify that the delay be indefinite. (2) Extensions of the delay of notice provided in paragraph (1) of up to ninety days each may be granted by the court upon application, but only in accordance with this subsection. (3) Upon expiration of the period of delay of notification under paragraph (1) or (2), the cus- tomer shall be served with or mailed a copy of the process or request together with the fol- lowing notice which shall state with reasonable specificity the nature of the law enforcement in- quiry: ‘‘Records or information concerning your transactions which are held by the financial in- 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