§3162 — Title 50 War and National Defense | U.S. Code

Summary

Federal law lets certain federal law‑enforcement and intelligence agencies ask banks, credit bureaus, financial firms, or U.S. companies for financial records, credit reports, and travel records needed for an investigation, counterintelligence check, or security review. The rule covers records about executive‑branch employees who, as a condition to get access to classified information, agreed during their background checks to let investigators look at their finances and travel records while they have access and for up to 3 years after access ends. The agency must send a signed written certification from the department or agency head, deputy, or a senior official (no lower than Assistant Secretary or Assistant Director). The request must include the employee’s signed agreement, say which records are wanted, and warn that the request may not be disclosed. If the agency certifies that telling others about the request could harm national security, investigations, diplomacy, or someone’s safety, the recipient may not reveal that the request was made or complied with. Recipients may share the information only with people who need it to comply, with lawyers for advice, or with others approved by the agency; those people must follow the same secrecy rules. The recipient must make records available within 30 days if the request meets the rules. The request and any secrecy order can be reviewed in court under 18 U.S.C. 3511. The law does not replace rights or rules under the Right to Financial Privacy Act or the Fair Credit Reporting Act.

Title 50, §3162

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(a)(1)Any authorized investigative agency may request from any financial agency, financial institution, or holding company, or from any consumer reporting agency, such financial records, other financial information, and consumer reports as may be necessary in order to conduct any authorized law enforcement investigation, counterintelligence inquiry, or security determination. Any authorized investigative agency may also request records maintained by any commercial entity within the United States pertaining to travel by an employee in the executive branch of Government outside the United States.

(2)Requests may be made under this section where—

(A)the records sought pertain to a person who is or was an employee in the executive branch of Government required by the President in an Executive order or regulation, as a condition of access to classified information, to provide consent, during a background investigation and for such time as access to the information is maintained, and for a period of not more than three years thereafter, permitting access to financial records, other financial information, consumer reports, and travel records; and

(B)(i)there are reasonable grounds to believe, based on credible information, that the person is, or may be, disclosing classified information in an unauthorized manner to a foreign power or agent of a foreign power;

(ii)information the employing agency deems credible indicates the person has incurred excessive indebtedness or has acquired a level of affluence which cannot be explained by other information known to the agency; or

(iii)circumstances indicate the person had the capability and opportunity to disclose classified information which is known to have been lost or compromised to a foreign power or an agent of a foreign power.

(3)Each such request—

(A)shall be accompanied by a written certification signed by the department or agency head or deputy department or agency head concerned, or by a senior official designated for this purpose by the department or agency head concerned (whose rank shall be no lower than Assistant Secretary or Assistant Director), and shall certify that—

(i)the person concerned is or was an employee within the meaning of paragraph (2)(A);

(ii)the request is being made pursuant to an authorized inquiry or investigation and is authorized under this section; and

(iii)the records or information to be reviewed are records or information which the employee has previously agreed to make available to the authorized investigative agency for review;

(B)shall contain a copy of the agreement referred to in subparagraph (A)(iii);

(C)shall identify specifically or by category the records or information to be reviewed; and

(D)shall inform the recipient of the request of the prohibition described in subsection (b).

(b)(1)(A)If a certification is issued under subparagraph (B) and notice of the right to judicial review under subsection (c) is provided, no governmental or private entity that receives a request under subsection (a), or officer, employee, or agent thereof, shall disclose to any person that an authorized investigative agency described in subsection (a) has sought or obtained access to information under subsection (a).

(B)The requirements of subparagraph (A) shall apply if the head of an authorized investigative agency described in subsection (a), or a designee, certifies that the absence of a prohibition of disclosure under this subsection may result in—

(i)a danger to the national security of the United States;

(ii)interference with a criminal, counterterrorism, or counterintelligence investigation;

(iii)interference with diplomatic relations; or

(iv)danger to the life or physical safety of any person.

(2)(A)A governmental or private entity that receives a request under subsection (a), or officer, employee, or agent thereof, may disclose information otherwise subject to any applicable nondisclosure requirement to—

(i)those persons to whom disclosure is necessary in order to comply with the request;

(ii)an attorney in order to obtain legal advice or assistance regarding the request; or

(iii)other persons as permitted by the head of the authorized investigative agency described in subsection (a) or a designee.

(B)A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a request is issued under subsection (a) in the same manner as the person to whom the request is issued.

(C)Any recipient that discloses to a person described in subparagraph (A) information otherwise subject to a nondisclosure requirement shall inform the person of the applicable nondisclosure requirement.

(D)At the request of the head of an authorized investigative agency described in subsection (a), or a designee, any person making or intending to make a disclosure under clause (i) or (iii) of subparagraph (A) shall identify to the head of the authorized investigative agency or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request.

(c)(1)A request under subsection (a) or a nondisclosure requirement imposed in connection with such request under subsection (b) shall be subject to judicial review under section 3511 of title 18.

(2)A request under subsection (a) shall include notice of the availability of judicial review described in paragraph (1).

(d)(1)Notwithstanding any other provision of law (other than section 6103 of title 26), an entity receiving a request for records or information under subsection (a) shall, if the request satisfies the requirements of this section, make available such records or information within 30 days for inspection or copying, as may be appropriate, by the agency requesting such records or information.

(2)Any entity (including any officer, employee, or agent thereof) that discloses records or information for inspection or copying pursuant to this section in good faith reliance upon the certifications made by an agency pursuant to this section shall not be liable for any such disclosure to any person under this subchapter, the constitution of any State, or any law or regulation of any State or any political subdivision of any State.

(e)Any agency requesting records or information under this section may, subject to the availability of appropriations, reimburse a private entity for any cost reasonably incurred by such entity in responding to such request, including the cost of identifying, reproducing, or transporting records or other data.

(f)An agency receiving records or information pursuant to a request under this section may disseminate the records or information obtained pursuant to such request outside the agency only—

(1)to the agency employing the employee who is the subject of the records or information;

(2)to the Department of Justice for law enforcement or counterintelligence purposes; or

(3)with respect to dissemination to an agency of the United States, if such information is clearly relevant to the authorized responsibilities of such agency.

(g)Nothing in this section may be construed to affect the authority of an investigative agency to obtain information pursuant to the Right to Financial Privacy Act (12 U.S.C. 3401 et seq.) or the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.).

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Right to Financial Privacy Act, referred to in subsec. (g), probably means the Right to Financial Privacy Act of 1978, which is title XI of Pub. L. 95–630, Nov. 10, 1978, 92 Stat. 3697, and is classified generally to chapter 35 (§ 3401 et seq.) of Title 12, Banks and Banking. For complete classification of this Act to the Code, see

Short Title

note set out under section 3401 of Title 12 and Tables. The Fair Credit Reporting Act, referred to in subsec. (g), is title VI of Pub. L. 90–321, as added by Pub. L. 91–508, title VI, § 601, Oct. 26, 1970, 84 Stat. 1127, which is classified generally to subchapter III (§ 1681 et seq.) of chapter 41 of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see

Short Title

of 1970 Amendment note set out under section 1601 of Title 15 and Tables. Codification Section was formerly classified to section 436 of this title prior to editorial reclassification and renumbering as this section.

Amendments

2015—Subsec. (b). Pub. L. 114–23, § 502(e), added subsec. (b) and struck out former subsec. (b) which related to prohibition of certain disclosure. Subsecs. (c) to (g). Pub. L. 114–23, § 503(e), added subsec. (c) and redesignated former subsecs. (c) to (f) as (d) to (g), respectively. 2006—Subsec. (b). Pub. L. 109–177 amended subsec. (b) generally. Prior to amendment, text read as follows: “Notwithstanding any other provision of law, no governmental or private entity, or officer, employee, or agent of such entity, may disclose to any person, other than those officers, employees, or agents of such entity necessary to satisfy a request made under this section, that such entity has received or satisfied a request made by an authorized investigative agency under this section.” Subsec. (b)(4). Pub. L. 109–178 amended par. (4) generally. Prior to amendment, par. (4) read as follows: “At the request of the authorized investigative agency, any person making or intending to make a disclosure under this section shall identify to the requesting official of the authorized investigative agency the person to whom such disclosure will be made or to whom such disclosure was made prior to the request, but in no circumstance shall a person be required to inform such official that the person intends to consult an attorney to obtain legal advice or legal assistance.”

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 180 days after Oct. 14, 1994, see section 802(c) of Pub. L. 103–359, set out as a note under section 3161 of this title.

§3162 Requests by authorized investigative agencies

Summary

Title 50, §3162

Notes & Related Subsidiaries

Editorial Notes

References in Text

Short Title

Short Title

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

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