Do you think the law enforcing agency should have the right to investigate anyone’s bank information frequently?

Abstract

The prime reason for existence of law in the society is to ensure fair judgment to everyone, regardless of rank or social status. The objection regarding the law enforcement agency’s right to access to financial records of an individual is clear – to ensure compliance with the right to privacy hence ensuring that the individual is not harassed. There are several laws protecting right to privacy of the individuals, but the post September 11 attacks era of the legal community has seen a drastic change and emergence of governments intention of allowing the law enforcement agencies to have access to the account related information almost directly. Since the USA is one of those nations which regard the rights of its citizens as the utmost importance, it is worth discussing their prevailing laws. The post attacks to USA era has seen modifications to many of the privacy and financial related laws being modified to adapt with its anti-terrorism combat plans. However, changes made were legal and the USA authorities made it clear that in the course of modification and introduction of some new laws, the privacy rights of the individuals were not explicitly hurt. Therefore, it is unfair to the individuals if the government allows the law enforcement agencies to have access to bank information. On the other hand, this raises justifications in support of the government that if needed, the government should only allow this right by letting the law enforcement agencies stay within legal boundary. The governments where privacy laws does not prevail should exercise cautionary steps to ensure that the law enforcement agencies does not misuse their powers by accessing the financial records of the individuals without any legal justification.

Table of Contents

Introduction

Throughout the world, privacy has big implications. Most of the developed nations regard this fundamental right not only as a core requirement for ensuring the transparency of the actions of the unknown but as a tool to safeguard the anonymity of the possible victim of information breach. In the United States of America, separate laws and legislations regarding privacy are existent. And when it comes to financial privacy, ensuring proper justification of the actions of the law enforcement agencies is a must. USA has a unique legal act titled ‘Right to Financial Privacy Act’ with effect from the year 1978. However, the legal authorities of Bangladesh so far did not come up with such an act.[1] During the ruling period of the last Caretaker government, the law enforcement agencies of Bangladesh repeatedly accessed information of the financial accounts of the alleged persons suspected of money laundering. During this investigation process, many unfair incidents happened which caused harassment to some individuals who were not even accused of such activities. This has raised deep concerns about the righteousness of the accessibility of the bank information by the law enforcement agencies.

The Central Bank of Bangladesh so far came up with the ‘Money Laundering Prevention Act’ which is in effect from the year 2002. The act states that if found guilty, any individual may be subject to legal actions. The act has empowered Bangladesh Bank with the power of enquiry similar to that of an Officer-in-Charge of a Police Station.[2] This has put the position of the Anti-Money Laundering Unit of the Central Bank in a similar role to that of the Police and hence it is worth discussing in conjunction with the discussion of the righteousness of the law enforcement agencies accessing bank information of individuals.

Justifications against the law enforcement agency’s access to bank information

A critical explanation of just how unfair it is to the individuals whose financial records are being accessed by the law enforcement agencies frequently; reveals that even the most basic privacy of an individual is protected under the ‘Universal Declaration of Human Rights’ as published by the United Nations (UN) in 1948. Let alone the financial privacy, Article 12 of this declaration states that: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks”.[3] This declaration signifies the urgency and importance of protecting privacy concerning any matter of an individual, be it financial privacy or anything else. This particular human right declaration is also supported by the ‘International Covenant on Civil and Political Rights’ of 1976. Bangladesh is a member of the UN and therefore a signatory to both of these international conventions. However, no legislations have been passed in order to bring these rights into action. India, the neighboring country, which is also a member of the UN, is also not an exception.

Considering the prevalence of the ‘Right to Financial Privacy Act’ in the USA, and following the footprints of it as a role model for each and every country’s government to follow, it is worth discussing the reasons against the law enforcement agencies access to bank information. The core objective of the standpoint against law enforcement agency’s right is to ensure that in the first place, the investigation of financial records must be carried out by the Central Bank itself since it automatically contains all the required information regarding any individual with a bank or financial institution account. However, it does not mean that the law enforcement agencies should not totally have access to financial records. This particular agency may have access, provided it complies with the procedures which are of a global standard. By global standard it is meant that it is compliant with a law or an act designed to protect the fundamental rights of an individual. USA has an act regarding this which requires that prior to any investigation; any government agency must serve a notice to the particular individual and an opportunity to object before any financial institution (including Banks) can disclose their private account related information.[4]

The continuous increase of terrorist activities and terrorist financing mean that each and every government’s agenda is unique and similar – to take any type of relevant measure in order to ensure the security of the citizens as a whole. The right of law enforcement agencies regarding access to bank information of the individuals must not be the only tool that the governments might use to stop terrorist funding. As with any law or legal activity, the prime function of law enforcement is to ensure the justification of the actions law enforcement agencies undertake. Therefore, as discussed in the earlier paragraphs, access to bank information by the law enforcement agencies might be important and it is almost impractical to directly argue and oppose the right. Rather, it is practical and sounds fair to the individuals who hold accounts with financial institutions when they are provided with the opportunity to know before their accounts are frequently accessed. In this limelight, it is worth discussing the  USA government’s ‘Bank Secrecy Act’ of 1970 which is also known as ‘Currency and Foreign Transactions Reporting Act’. This particular act, like any other act discussed previously, also states that financial institutions must collaborate with the government agencies for detection and prevention of money laundering.[5] This act works in conjunction with the ‘Right to Financial Privacy’ act. This particular act requires financial institutions including banks to report suspicious transaction details to the Central Bank as well as some government agencies. The government agencies include, but not limited to agencies such as the Credit Information Bureau and such. Format of the reports are predefined and any individual crossing a certain amount of transaction limit is subject to scrutiny. The individuals are here protected against misuse of the act in a way that this law is made public and anyone can have direct access to this set of information. This particular act was later superseded by the ‘USA PATRIOT’ act. The title of the act is a ten-letter acronym which stands as: ‘U’ for Uniting; ‘SA’ for Strengthening America; by ‘P’ for Providing; ‘A’ for Appropriate; ‘T’ for Tools; ‘R’ for Required; to ‘I’ for Intercept; and ‘O’ for Obstruct and ‘T’ for Terrorism.[6] The act was passed after the September 11^th attacks. However, Title III of this act which is titled ‘International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001’, made changes to the ‘Bank Secrecy Act’ which is discussed above. In order to combat terrorism, the emergence of this particular act made it easier for law enforcement agencies to gain access to bank information. In some cases, the restrictions placed on banks regarding release of bank information as stated in ‘The Right to Financial Privacy Act’ were lifted. The bank authorities, from that time onwards, have permission to directly report suspicious financial transactions of certain amounts to law enforcement agencies. This clearly shows that the law enforcement agencies, in particular cases, have distinct and direct access to bank information. This act, as well, has been made public and the individuals are aware of the consequences of their transactions. Therefore, it can be clearly understood that even if the law enforcement agencies does have limited access to the financial information of the individuals, the government has made it public that such investigation might happen. This action is within legal boundary. The prime cause of concern for the citizens of countries like Bangladesh and India is that no law of this type is present and because there is a lack of good governance, law enforcement agencies are misusing their powers. Without any relevant cause or permission by law to act upon, they are accessing the financial records which are unfair to the individuals.

Conclusion

There may be heated arguments in support of the right of the law enforcement agencies having access to the financial records of the individuals frequently but considering the privacy laws persistent globally and the reason for the presence of law being ensuring fair judgment, it is imperative and easy to raise voice against the misuse of law by presenting a viewpoint against the law enforcement agencies right to access bank information of the individuals frequently.

References

Siddiqui M S 2011, ‘Privacy Act versus Right to Information Act’

The Financial Express, vol. 18, no. 224.

Retrieved December 01, 2011, from

http://www.thefinancialexpress-bd.com/more.php?date=2011-06-10&news_id=138648

Bangladesh Bank, n.d. Managing Core Risks in Banking: Guidance notes on Prevention on Money Laundering. Retrieved December 01, 2011, from https://www.imolin.org/doc/amlid/Bangladesh/Bangladesh_Guidence_Notes_on_Prevention_of_Money_Laundering.pdf

United Nations, n.d. The Universal Declaration of Human Rights.

Retrieved December 01, 2011 from

            http://www.un.org/en/documents/udhr/index.shtml#a12

Electronic Privacy Information Center, n.d. The Right to Financial Privacy Act.

Retrieved December 03, 2011 from http://epic.org/privacy/rfpa

Wikipedia, n.d. Bank Secrecy Act. Retrieved December 03, 2011

            from http://en.wikipedia.org/wiki/Bank_Secrecy_Act_of_1970

Wikipedia, n.d. USA PATRIOT Act. Retrieved December 03, 2011

from http://en.wikipedia.org/wiki/USA_PATRIOT_Act#Title_III:_Anti-money-laundering_to_prevent_terrorism