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Aiding The Investigators: What the Right To Financial Privacy Act Allows You To Do
Article from PrivacyHeadquarters.com, a Bankers Systems' web site
September 13, 2001
As a result of the tragic events of September 11, various federal agencies are working around the clock to identify and prosecute those who are responsible. Important information or evidence may be contained in the financial records of certain individuals and the authorities will be seeking those records. The purpose of this article is for financial institutions to understand both the circumstances under which they can volunteer information about customer financial records to federal government authorities, and the procedures and requirements that apply when the federal government authorities are requesting customer financial information.
Understanding the Law That Applies
The federal Right to Financial Privacy Act (RFPA) governs the release of customer financial information to federal government authorities. Generally, the customer must receive notice prior to the release of the information so the customer has an opportunity to challenge the release. However, there are several important exceptions, three of which are particularly pertinent in the aftermath of the terrorist attacks.
1. Voluntary disclosure by a financial institution.
Section 3403(c) of the RFPA states that a financial institution or its officer, employee, or agent may notify a government authority of the existence of information which may be relevant to a possible violation of any statute or regulation. In this instance, plotting to commit terrorist attacks would be the violation at issue. If you have information you believe would be relevant to the investigation, you may rely upon this section of the law to notify government authorities.
Understand, however, that this is a very limited exception to the RFPA. No records can be released under this exception. The information you can disclose may only include the name or other identifying information of the individual, corporation, or account involved and the nature of the suspected illegal activity.
2. Disclosure pursuant to request by a government authority conducting foreign intelligence activities.
Section 3414(a) permits the production of customer financial records pursuant to a request from a government authority authorized to conduct foreign intelligence activities. If the FBI is making a request for customer financial information as a result of its role in investigating foreign intelligence, it is permissible to turn over the information to them without complying with the notice provisions of the RFPA. It is imperative that you ask for and receive a certificate of compliance with the RFPA from the government authority in this type of situation. The financial institution is protected from liability if it provides customer information in good faith reliance after receipt of a certificate of compliance.
In addition, Section 3414(b)(5) of RFPA requires a financial institution, its officers, employees or agents to comply with a request for financial records made by the FBI when the FBI Director certifies in writing that the records are 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 foreign power or an agent of a foreign power.
3. Disclosure required due to imminent danger
Section 3414(b) provides that a federal government authority may obtain financial records under this exemption if the authority determines that a delay in obtaining the records would create imminent danger of:
(A) physical injury to any person:
(B) serious property damage; or
(C) flight to avoid prosecution.
As with the foreign intelligence exception, the government authority seeking the financial records to prevent imminent danger is required to provide the financial institution with a written certificate signed by a supervisory official that the authority has complied with the applicable provisions of RFPA. See Section 3403(b) for the details.
When information is requested under the foreign intelligence or imminent danger exceptions, there does not seem to be any requirement that the records request be in a particular form. In other words, it would not necessarily have to be a subpoena, summons, or search warrant. It could even be an oral request. As long as you receive a certificate of compliance from the appropriate official, you can turn over the information and records, and you should do so in an expeditious manner.
These are difficult and confusing times, but we hope that these guidelines will help you assist the government in its difficult task while shielding your institution from liability.
Questions? Please contact the Webmaster for more information.
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