12 U.S.C. § 3408 — Formal written request

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- 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-