§ 3409. — Delayed notice.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 12USC3409]
TITLE 12--BANKS AND BANKING
CHAPTER 35--RIGHT TO FINANCIAL PRIVACY
Sec. 3409. Delayed notice
(a) Application by Government authority; findings
Upon application of the Government authority, 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 appropriate court if
the presiding judge or magistrate judge finds that--
(1) the investigation being conducted is within the lawful
jurisdiction of the Government 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 notice will result in--
(A) endangering life or physical safety of any person;
(B) flight from prosecution;
(C) destruction of or tampering with evidence;
(D) intimidation of potential witnesses; or
(E) otherwise seriously jeopardizing an investigation or
official proceeding or unduly delaying a trial or ongoing
official proceeding to the same extent as the circumstances in
the preceeding \1\ subparagraphs.
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\1\ So in original. Probably should be ``preceding''.
An application for delay must be made with reasonable specificity.
(b) Grant of delay order; duration and specifications; 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) of this section, it shall enter an ex parte
order granting the requested delay for a period not to exceed ninety
days and an order prohibiting the financial institution 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 financial controls over foreign accounts in the
United States under section 5(b) of the Trading with the Enemy Act [12
U.S.C. 95a, 50 App. U.S.C. 5(b)], 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 person or group of persons
associated with a customer, 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 customer shall be served with or mailed a copy
of the process or request 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 process or request
were supplied to or requested by the Government authority named in the
process or request on (date). Notification was withheld pursuant to a
determination by the (title of court so ordering) under the Right to
Financial Privacy Act of 1978 [12 U.S.C. 3401 et seq.] that such notice
might (state reason). The purpose of the investigation or
official proceeding was .''.
(c) Notice requirement respecting emergency access to financial records
When access to financial records is obtained pursuant to section
3414(b) of this title (emergency access), the Government authority
shall, unless a court has authorized delay of notice pursuant to
subsections (a) and (b) of this section, as soon as practicable after
such records are obtained serve upon the customer, or mail by registered
or certified 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 enforcement
inquiry:
``Records concerning your transactions held by the financial
institution named in the attached request were obtained by (agency or
department) 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) of this section.
(Pub. L. 95-630, title XI, Sec. 1109, Nov. 10, 1978, 92 Stat. 3702; Pub.
L. 101-650, title III, Sec. 321, Dec. 1, 1990, 104 Stat. 5117.)
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 (Sec. 1701 et seq.) of
Title 50, War and National 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 (Sec. 3401 et seq.).
For complete classification of this Act to the Code, see Short Title
note set out under section 3401 of this title and Tables.
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.
Section Referred to in Other Sections
This section is referred to in sections 3404, 3406, 3412, 3413, 3414
of this title; title 15 section 78u.
