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Sunday, June 20, 2010

Sunday Grumpy: It's For Your Protection

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

--Fourth Amendment to the US Constitution
I spent 31 years in banking - from 1977 to 2008.  Back in 1985, I worked for a large bank in California.  I was in charge of the department that was responsible for resolving all of the various out-of-balance conditions inside the bank, and also any outages that occurred between us and other banks.  As a result, we had computer and micro-fiche records for the entire bank.

Because we were this centralized repository of records, whenever any government agency needed records on one of our customer accounts, the request would come to us.

There is a law called the Bank Secrecy Act (BSA).  It was in effect back then, and is in effect to this day.  But the law has been turned on its head.

Back in the 1980's the law was in place to protect the privacy - the secrecy - of our customer records.  If a records request was received from a government agency and it wasn't sent in the form of a subpoena, it was rejected outright.

If the request came in as a subpoena, we were required by law to notify the customer of the request by the government agency.  We were also required by law to hold the requested documents for (I believe) 10 business days to allow the customer to fight the subpoena.

Over the next 20 years or so, banks were turned from being trustees and protectors of customer records into quasi-agents of the government.  The BSA was changed from a law that restricted banks to only disclosing their customer records after a judge had approved the request (as is required by the 4th Amendment) into a process where a single agent at any state or federal agency can get your records.

The only "burden of proof" that agent needs is a belief that someone might somehow be involved in any type of criminal activity.  Forget that whole, "probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" inconvenience.

Oh, and the banks are now forbidden, by federal law, from disclosing to the customer that their records have been sent to the government.  If the banker tells you of the request, they go to jail.

Privacy and secrecy are now only associated with criminals and terrorists.  A good, up-standing citizen has no need for such things.  If you've done nothing wrong, you should have nothing to hide.

People slurp up this school of thought like it's free lemonade on a hot summer day.  They choose not to see they are making a deal with the devil.  They willingly make the, "trading liberty for security" bargain Benjamin Franklin warned us about.

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001

You and I know it as the USA PATRIOT Act.

In October of 2001 after the 9/11 terrorist attack, they wrapped this desecration of the Constitution in Red, White and Blue and sold it as patriotism. Just from a banking perspective, you have no idea what powers this abomination granted to the federal and state government.

Most people know that you cannot take out $10,000 in cash from your own bank account without it being reported to the government.  Same thing if you deposit $10,000.  Trust me when I tell you that it goes much deeper.  Much deeper.  All under the pretense that it's keeping us safe from bad guys.

No matter that it's YOUR money.  No matter that the federal government has no Constitutional right to know what you do with that money or that you've decided to covert it from electrons into paper money.

They get the information, and we all willingly comply (you keep money in a bank, right?) - like it or not.

DHS is pulling out the "National Security" card once again -
Fighting homegrown terrorism by monitoring Internet communications is a civil liberties trade-off the U.S. government must make to beef up national security, the nation's homeland security chief said Friday.

As terrorists increasingly recruit U.S. citizens, the government needs to constantly balance Americans' civil rights and privacy with the need to keep people safe, said Homeland Security Secretary Janet Napolitano.
Yeah.  That whole, "balance Americans' civil rights" thing.  The Constitution tells you what you can, and what you can't do.  There's no balance involved, Janet.  Unless you have evidence that an individual or group is planning or committing a crime, and you can sell the story to a judge, you MUST NOT invade their privacy.  It's really that simple.

But that's old news.  Janet already knows that the battle over the Fourth Amendment is won.  We citizens got our collective butts kicked.  That's not what her new battle is about.  She's taking aim at the First Amendment -
"The First Amendment protects radical opinions, but we need the legal tools to do things like monitor the recruitment of terrorists via the Internet," Napolitano told a gathering of the American Constitution Society for Law and Policy.
Hey, see, no big deal.  We're just going to watch for evil terrorists.  We promise that's all.  We have no intention whatsoever of restricting what you can say.  Nope.  Not us.  Really.
"We can significantly advance security without having a deleterious impact on individual rights in most instances. At the same time, there are situations where trade-offs are inevitable."
Try selling that reeking sack of donkey feces somewhere else.  This former banker has seen what the government does when it offers a trade-off.  All we get in exchange is screwed.

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Tracy Dear said...

Ugly, ugly stuff.

suek said...

Given your background, bet you'll find this article of interest:

Chief Instructor said...

suek, that is stunning. I spent 12 years with Wells back in the 70's and 80's (still a one-state bank back then).

I would love to see if they simply did not report the cash transactions (a federal offense) or if they were reported to an organization called FinCEN, but because of the volumes of reports, FinCEN didn't pick up anything suspicious.

Banks are supposed to know their customers and their business practices. If they are doing anything that seems out-of-pattern, it must be separately reported on an SAR (Suspicious Activity Report) even if a large cash transaction (CTR) has been filed.

I'll tell you, if this had happened to a small bank or even a regional bank, there'd be pix of the CEO being perp-walked into the booking room. Government regulators on-the-job!

The big boys get a pass. Again.