US spying on your bank accounts?

[xiannaix]

Such safeguards are not possible. We have never had real safeguards against invasion of privacy.

But we can create sanctions for the invasion.


The exclusionary rule for purposes of over zealous criminal investogators in the US wouldn't punish those officers but it would prohibit them from benefiting from the violation by exclusing any eviednce so gathered from admission in court (under most circumstances - a criminal may not freely lie relying on the fact that evidence previously ruled inadmissible cannot be used. Rather, previously exclused evidence may be introduced in rebuttal to impeach a statement from a witness)

However, criminal investigation is backward looking - meaning it seeks to discover who committed a crime, catch them and punish them for it. Natonal security is forward looking in that it seeks to prevent an act from occuring in the future. As such, in the US the 4th amendment, which prohibits "unreasonable" warantless searches is variable according to the interests being served. What is unreasonable for purposes of criminal investigation may not be for national security reasons. The problem though is this - - if those conducting the searches for national security purposes breach the reasonableness requirement - what is the sanction? An exclusionary rule doesn't work. So, TAE - what do you think?

 

[TAE]

I think that whoever does the search has to convince an independent judge that the search is necessary before it goes ahead.
It's all about accountability and transparency.

 

[xiannaix]

I think that whoever does the search has to convince an independent judge that the search is necessary before it goes ahead.
It's all about accountability and transparency.

Transparency is a killer to covert intelligence gathering.

Congress tried to address the issue in part by creating FISA and the FISA Court and FISA Court of Review. But that too has it's limitations and stops somewhere around the notion of domestic spying for national security purposes. Once the infraction takes place outside of US terriroty US laws can't really touch it. Another issue: Congress can't legislate an end run around Article II of the constitution.

Anyway - I understand and share your concerns but I really don't know what could be done to make the system more easily stomached to say nothing of secured and supervised.

 

[TAE]

Transparency is a killer to covert intelligence gathering.

It's also a killer to dodgy state activities.

I really don't know what could be done to make the system more easily stomached to say nothing of secured and supervised.

It's a difficuly issue, no doubt.

 

[TeeJay]

...Once the infraction takes place outside of US terriroty US laws can't really touch it...

This isn't true is it since the US has various laws that regulate the actions of both US citizens and US agencies wherever they are in the world. If it doesn't already exist it would be completely possible to draft a law, regulation or policy that covers this kind of action.

 

[xiannaix]

This isn't true is it since the US has various laws that regulate the actions of both US citizens and US agencies wherever they are in the world. If it doesn't already exist it would be completely possible to draft a law, regulation or policy that covers this kind of action.

American law has no application in Berlin. If it did the Germans would have good cause to be pissed.

American law is not extraterritorial - now - laws can be drafted to impact on those acts which do take place on American soil or do direct what operatives can do in the field. However, more likely operatives may/could be (uncertain here) subject to the UCMJ.

Still, more importantly, Article II directs the President to engage in action to protect the US. Congressional acts cannot limit his authority or direct him in how he carries out that duty - - which is perhaps the more important point than whether or not Congress could criminalize X Y or Z even if it happened in Berlin. it takes an amendment to change the constitution

 

[jiggajagga]

Cancelled. link doesn't work

 

[jiggajagga]

Just type New York Times in google, goto Bush angry then editors letter. Well worth the read IMHO. All that is best about the USA for a change.

 

[detective-boy]

When you start throwing round inane remarks like that DB you are simply showing that you are losing the argument I'm afraid. I don't think that in any of my numerous posts I have bad mouthed you once.

Oh? Did I imagine this ...

I get the impression that if Mr Blair and Mr Bush told Detective Boy that it was official....Pigs do indeed fly, he would spend most of the day with his eyes to the sky!

supercillious Showing or characterised by haughty scorn or indifference, disdainful.

Doesn't sound like fucking high praise to me

And it doesn't show I'm losing the argument. It means I'm bored of supercillious pricks.

 

[kyser_soze]

So ultimately what we have here is a story concerning a financial service used by a tiny number of people complying with it's members guidelines on cooperating with government (guidelines that are available on it's website and whenever you apply to make a SWIFT transfer)

Hardly 1984 is it?

 

[jiggajagga]

Oh? Did I imagine this ...



supercillious Showing or characterised by haughty scorn or indifference, disdainful.

Doesn't sound like fucking high praise to me

And it doesn't show I'm losing the argument. It means I'm bored of supercillious pricks.

Where's my obscene language to you DB?

Thank god you are EX copper. I bet you'd have loved to have gone in effing and blinding at those moslem civilians eh?
Decorum man! Decorum!

 

[sleaterkinney]

No, what we have here is the US government going through the financial transactions of anyone who moves money around using this service, no matter if they go near the US or not. And it's none of their business. Would you mind if George W came around and went through your mail kyser?

 

[kyser_soze]

Article on the IHT here sheds rather more light on what has happened...

Sleater - this is far from GWB looking at my mail - SWIFT is a very specific service to begin with. Second, the main issue here is the lack of oversight from Congress, not the actual tracking itself (which is in fact a standard method of tracking money laundering from criminals for example) and the subsumption of the oversight authority into the White House, which is an ongoing issue in the US. Were the UK government to serve the relevant subpeonas to SWIFT it too could examine the financial records of those not in the UK - but only their SWIFT transactions, nothing more.

The issues are those of oversight and accountability not the snooping (having read the original NYT article it's terrible - it's implication throughout is that individual bank accounts and the US clearing service were being illegally scrutinised).

Regardless of your position on the TWOT, there ARE individuals and groups who seek funding for non-linear miltiary operations and SWIFT will deal with many of those financial interactions - are you saying that a whole method of investigation is to be removed? What's funny as well is that many who would argue about this 'infringement' on banking privacy would have no problems whatsoever with taking that privacy away from say, Rupert Murdoch in the course of investigation into tax avoidance.

 

[sleaterkinney]

Regardless of your position on the TWOT, there ARE individuals and groups who seek funding for non-linear miltiary operations and SWIFT will deal with many of those financial interactions - are you saying that a whole method of investigation is to be removed? What's funny as well is that many who would argue about this 'infringement' on banking privacy would have no problems whatsoever with taking that privacy away from say, Rupert Murdoch in the course of investigation into tax avoidance.

And there are governments who would abuse this, I just don't have your faith that govts and govt departments would never use that information against it's citizens.
And tbh in TWOT most of the money will be black-market anyway.....

 

[kyser_soze]

Here's a point - it's hard to 'use' something against someone if it's legal. And I'm quite sure you'd also back the use of such powers to investigate tax fraud, no? Or do you take the Swiss POV that all banking information is legally inviolate and cannot be viewed by any body other than the bank and the account holder?

 

[TeeJay]

American law has no application in Berlin. If it did the Germans would have good cause to be pissed.

American law is not extraterritorial - now - laws can be drafted to impact on those acts which do take place on American soil or do direct what operatives can do in the field. However, more likely operatives may/could be (uncertain here) subject to the UCMJ.

Still, more importantly, Article II directs the President to engage in action to protect the US. Congressional acts cannot limit his authority or direct him in how he carries out that duty - - which is perhaps the more important point than whether or not Congress could criminalize X Y or Z even if it happened in Berlin. it takes an amendment to change the constitution

Sorry you are wrong about this: some American law impacts on Americans worldwide - for example they have to pay tax wherever they are working in the world. They are also prohibited from engaging in certain activities. American law also covers the actions of various US agencies, again worldwide.

Saying that US law covers the actions and activities of US citizens and US agencies is not the same as saying that it covers non-US people overseas (although, as with Belgium, I think that certain classes of the most serious crimes (eg genocide, crimes against humanity) are actually covered by US law.

If some bits of US law didn't apply to US citizens outside of the US then why would they be required to pay tax even when working outside the US, for example?

 

[sleaterkinney]

Here's a point - it's hard to 'use' something against someone if it's legal. And I'm quite sure you'd also back the use of such powers to investigate tax fraud, no? Or do you take the Swiss POV that all banking information is legally inviolate and cannot be viewed by any body other than the bank and the account holder?

How is it difficult?. And it's not just legality, the US and EU govts have had loggerheads in the past about commercial espionage, it's not too farfetched to see this information being used for that purpose and imo this is what it's being used for anyway, unless you think they're going to turn up a transaction from Mr U Bin Laden...
I would take the Swiss POV and I think that in the future with internet banking etc it's the way things will go anyway for more people, Governments will have to find different ways of taxing.

 

[kyser_soze]

How can you blackmail someone for behaving legally? Second, the EUs position on that spat was ridiculous given that UK, French and German secret services were also being used in a similar fashion.

I'm actually quite shocked that you take the Swiss POV - unless you're ultimately thinking about ending centralised government of course But you're also basically saying that governments and law enforcement agencies shouldn't be allowed to access financial transactions in any circumstances?

 

[sleaterkinney]

Well, say X has a subscription to Ladyboy Monthly, or pays for the upkeep of his mistress in Rio etc.

I am saying that pretty much, one of the disadvantages of privacy is that it will apply to criminals too but I don't have enough faith in governments so I guess that's the case.

 

[TAE]

How can you blackmail someone for behaving legally?

Of course you can. Just because something is legal it doesn't mean you want everybody to know about it.

 

[detective-boy]

Where's my obscene language to you DB?

Who said it was obscene language?

You should write fiction mate, you're a total fantasist.

Best you go on ignore for a while.

 

[xiannaix]

Sorry you are wrong about this: some American law impacts on Americans worldwide - for example they have to pay tax wherever they are working in the world.

There is an exception for foreign earned income.

They are also prohibited from engaging in certain activities. American law also covers the actions of various US agencies, again worldwide.

That relating to directions for US agent. diplomats etc.

Saying that US law covers the actions and activities of US citizens and US agencies is not the same as saying that it covers non-US people overseas (although, as with Belgium, I think that certain classes of the most serious crimes (eg genocide, crimes against humanity) are actually covered by US law.

Genocide committed in Rwanda breaks no American law.

An American who kills a German in Berlin has broken no American law

If some bits of US law didn't apply to US citizens outside of the US then why would they be required to pay tax even when working outside the US, for example?

last time I check the code or spoke with a friend of mine who works oil rigs near Lagos - he got an exemption for foreign earned income (it may be limited - but it is not fully taxed) in any event - point taken

edit - found this on a quick search - http://www.filetax.com/expatinfo.html with the proper paperwork $70k is excludable.

Still - your point on taxes is correct

 

[TeeJay]

Genocide committed in Rwanda breaks no American law.

Sorry, but again you are wrong.

Put the following into Google:

United States Code Chapter 50A Section 1091 Genocide

You are also wrong that crimes committed overseas are not punishable by the home country: for example the UK has just made various child-sex crimes illegal wherever they occur in the world, if they are committed by UK nationals.

The Sexual Offences Act 2003 enables British citizens and residents who commit sexual offences against children overseas to be prosecuted in the UK.

http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1100182470588

 

[TAE]

Sorry, but again you are wrong.

Put the following into Google:

United States Code Chapter 50A Section 1091 Genocide

How can the US legislate outside its own borders unless it concerns their own citizens?

 

[Fullyplumped]

How can the US legislate outside its own borders unless it concerns their own citizens?

Any state can legislate however it wishes in line with its own constitution. How it enforces such laws is a different and entitrely practical problem.

 

[TeeJay]

How can the US legislate outside its own borders unless it concerns their own citizens?

Genocide is a "crime against humanity" and laws against it have UN backing and backing in international law.

The US is not the only country that has passed laws like this. Maybe we should turn the question around and ask why lines on a map should trump any other principles of morality and law? Maybe you worship the ideal of borders above any other principle? Others may well disagree and this may be reflected in the laws they pass.

 

[xiannaix]

Sorry, but again you are wrong.

Put the following into Google:

United States Code Chapter 50A Section 1091 Genocide

did you see this rather important section of the code

(d) Required Circumstance for Offenses. - The circumstance referred to in subsections (a) and (c) is that -
(1) the offense is committed within the United States; or

(2) the alleged offender is a national of the United States (as defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101).

So, again it's not exactly what you're getting at.

I'll concede partially that the US has a law on the books limiting American action overseas but, genocide is a fairly exceptional exception.

Your general point - that the US has laws criminalizing extraterritorial acts - I'll concede - but - genocide is a pretty big exception that I'd be shocked if it has ever been charged, ever will be charged and if it was that it could withstand a habeas challenge due the exterritorial nature. One maight well ask how a law that appears on its face to be unconstitutional get there? Think any US COngressman would be caught dead with the charge that he voted against a bill that criminalized genocide? It is a lip service bill for Amnesty Interntional types.

I've yet to read (or find) the qualification from (2) but consider it no matter to the issue as I'll read it as large as necessary to include any US citizen you'd wish it to include

this point is well said:

Any state can legislate however it wishes in line with its own constitution. How it enforces such laws is a different and entitrely practical problem.

and it speaks to my above comments about the law's dubious constitutionality (or other problems with einforceability)

You are also wrong that crimes committed overseas are not punishable by the home country: for example the UK has just made various child-sex crimes illegal wherever they occur in the world, if they are committed by UK nationals.

You address a point I didn't make. I restrained my comments to US laws. I aver nada as for what other states may do or where they claim jurisdiction. If the UK wishes to criominalize acts of UK nationals committed abroad - so be it.




anyway - this is getting pretty far afield now



Extraterritorial issues may or maynot be relevent but the point I was making is that it is highly unlikely that Congress can direct the Executive in how he exercises and performs his Article II duties as they are different with regard to "reasonableness" as interpretted from the fourth amendment from "reasonableness" for criminal investigation purposes (where Congress can limit how eg the FBI pursues it's goals of policing crime).

 

[detective-boy]

Your general point - that the US has laws criminalizing extraterritorial acts - I'll concede - but - genocide is a pretty big exception that I'd be shocked if it has ever been charged, ever will be charged and if it was that it could withstand a habeas challenge due the exterritorial nature.

Don't know about the US and it's sometimes bizarre legal system, but the UK has a number of similar offences on it's books and there is no problem whatsoever with trying and convicting people in the UK.

It isn't common but that's because it isn't common, not because it's not legally possible.

 

[xiannaix]

Don't know about the US and it's sometimes bizarre legal system, but the UK has a number of similar offences on it's books and there is no problem whatsoever with trying and convicting people in the UK.

It isn't common but that's because it isn't common, not because it's not legally possible.

right - and I'm arguing for the US it's nearly impossible to find some one to fit the necessary acts and almost certainly would fail a habeus challenge as criminalizing extraterritorial acts. Now, if the party charged is a Gov't agent - I'd carve out an exception. Eg - a US soldier finds no relief from US law abroad however the law that applies to him does not apply to US citizens - the Uniform Code of Military Justice has limited scope. I'd not be surprised if that section above defining US National didn't limit that class of people to agents of the State but I can't find it so that's mere speculation.


and - "bizarre" made me chuckle - I know that one's getting way off topic but maybe PM me and tell me what you mean - I'm very curious considering US law is premised almost entirely on English Common Law and the UKs legal traditions.

 

[zoltan]

going back to SWIFT - SWIFT is an interbank currency transfer system - This isnt the same as snooping your into bank account - even if Uncle Sam does get to see SWIFT information, all it sees is interbank transfers & not the accounts or the account details themselves.Unless yer a big Bank or corporate, then you wont have a SWIFT account and even if you have one, it it just a message address and nothing more.Each Bank brach may have its own SWIFT address, but each bank may have several thouisand customers that could use that SWIFT address for transferring cash overseas. this doesnt mean the the US can see each branches customer accounts or balances/ transactions.

anyway., any transaction over £10K has to reported to the BoE by your bank.

dont mean to piss on your chips, but the overreaction is a big Daily Maily IMHO.