Law Enforcement & Civil Litigation Flashcards
What does the Right to Financial Privacy Act of 1978 require?
USG cannot access or obtain copies of financial information unless the financial records are Reasonably Described, and you have one of the following:
- Appropriate formal written request from an authorized government authority
- Appropriate administrative subpoena or summons
- Qualified search warrant
- Customer authorization
- Appropriate judicial subpoena
Who does the Bank Secrecy Act of 1970 (BSA) apply to, and what does it do?
The BSA applies not only to banks, but also to securities brokers and dealers, money services businesses, and even casinos and card clubs.
Financial institutions must keep and retain records on certain financial transactions and file Suspicious Activity Reports (SARs) to alert government agencies when they suspect or detect that a transaction may be a possible crime. Violations of these regulations are subject to fines and even imprisonment.
What are the record retention requirements under the Bank Secrecy Act?
Financial institutions are required to retain records for:
* Currency transactions > $10K
* Transportation of monetary instruments
* Purchases of currency-like instruments > $3K
What triggers a suspicious activity report (SAR) under the Bank Secrecy Act?
SARs are filed with the Department of Treasury’s Financial Crimes Enforcement Network when an entity:
* Suspects an insider involved in a crime, regardless of amount
* Detects possible crime >$5,000 and has basis for identifying suspect
* Detects possible crime >$25,000 (even if no suspect)
* Suspects money laundering in currency transactions aggregated >$5,000
What are the penalties for violating the Bank Secrecy Act?
- Civil penalties (fines)
- Fines for negligence or a failure to comply with regulations, information sharing requirements or due diligence requirements
- Criminal penalties (including fines and imprisonment)
Access to communications
Are wiretaps legal? If not, are there exceptions?
Title III of the 1968 anticrime law, Omnibus Crime Control and Safe Streets Act, prohibits wiretaps of telephone calls and other aural communication made through a network without a warrant. It also extends to oral communications via the use of hidden bugs or microphones.
However, exceptions can be made if consent has been given by one of the parties involved (or both parties, depending on state law), or within the ordinary course of business. The latter is usually preceded by a message alerting the caller that the call is being recorded for quality purposes.
What are the basic provisions of the Electronic Communications Privacy Act (ECPA), and what happens if I violate them?
The ECPA extends the ban on interception to include “electronic communications.” This includes email and other communications that are not wire or oral communications, and pen registers. Although there are consent exceptions to these provisions, violation of the ECPA is a criminal offense. It includes a private right of action.
What is the CalECPA?
The California Electronic Communications Privacy Act, which states that: No California government entity can search phones and no police officer can search online accounts without:
* Permission from a judge
* Obtaining consent
* Showing it is an emergency
How does the ECPA regulate access to E-mails?
The ECPA covers email and other communications that are not wire or oral communications. However, it does not cover metadata associated with these communications.
How does the ECPA regulate access to Pen registers?
ECPA Title III (the Pen Register Act): Provides for pen register and trap and trace orders from a judge under the lenient legal standard of “relevant to an ongoing investigation” These show the incoming and outgoing calls from a single device.
How does the Stored Communications Act regulate access to Stored records?
- Enacted as part of ECPA in 1986
- Creates a general prohibition against the unauthorized acquisition, alteration or blocking of electronic communications while in electronic storage in a facility through which an electronic communications service is provided
What are two exceptions to the Stored Communications Act?
The law allows for exceptions to employers for conduct authorized:
* “By the person or entity providing a wire or electronic communications service,” which is often the organization
* “By a user of that service with respect to a communication of or intended for that use,” in other words, if the employer’s reason for doing so is reasonable and work-related
What is the Communications Assistance to Law Enforcement Act (CALEA)?
Sometimes referred to as the “Digital Telephony Bill.”
CALEA lays out the duties of defined actors in the telecommunications industry to cooperate in the interception of communications for law enforcement and other needs relating to the security and safety of the public.
It requires telecommunications carriers to design their products and services to ensure they can carry out a lawful order to provide government access to communications.
Are Internet service providers covered by CALEA?
Yes. CALEA originally excluded internet services. However, in 2005, the FCC issued an order that providers of broadband internet access and VoIP services were considered telecommunications services when they interconnect with traditional telephone services. As a result, they now operate under CALEA requirements.
