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U.S. Code as of:
01/19/04
Section 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.
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.
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