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But in a situation involving a subpena, there should be notice, just as would be required under current law if those records were in your office or in your home.
Senator SPARKMAN. You understand all the statements I made related to this particular case. When a grand jury issues a subpena, presumably doing it on probable cause, we can't go back of that.
Senator TUNNEY. I just wanted to ask the witness if you are familiar with the pocket subpena.
Mr. DUFFY. Yes, as a matter of fact, I think in this particular case what would be termed a pocket subpena was used when the FBI agent simply called the bank and said, “We have a subpena, and would you start getting the records available?"
I would want to comment, Senator Tunney, I think it is hard to separate out grand jury subpenas from other kinds of subpenas in terms of the protection of this bill. The grand jury subpenas and other subpenas are investigative tools of the Government. They can be abused.
Senator TUNNEY. I agree with that. A court search warrant requires probable cause, and the grand jury subpena does not. There is a big difference between the grand jury subpena and a search warrant, and, of course, you are familiar with that.
My legislation requires notice if there is a subpena by a grand jury. It does not require notice if there is a search warrant, and I think that is the way that it should be.
Mr. Duffy. We would support those provisions fully. I think it is important to point out also, however, that anyone raising first amendment claims can insist that the Government make a showing beyond probable cause, that they make a showing that there is a compelling state interest for the acquisition of the information sought.
Also, that there is no alternative means of acquiring the information. Generally, we would support the opportunity to be heard, which you only achieve if notice is given and at a prior judicial hearing.
Senator TUNNEY. Are you aware of other monitoring going on besides your church group?
Mr. Duffy. I would have to defer to Reverend Raible.
Reverend RAIBLE. Not definitely. There are organizations that believe monitoring is going on of various kinds, whether it is military surveillance, use of the IRS investigations, or whether it is the kind of thing we are talking about. Senator TUNNEY. Has this had a chilling effect on your church?
? Reverend RAIBLE. Thus far we feel it has not had a chilling effect, although we cannot say what effect it has had on individual donors and subscribers. We do feel it has a powerful effect on us in the amount of time, energy, and even money we have had to spend to protect the rights of ourselves and our members. This keeps us from doing other things we ought to do as a religious body.
Senator TUNNEY. Thank you.
Senator SPARKMAN. Let me ask a question. In your last statement, you referred to the first amendment. Didn't you mean the fourth amendment?
Mr. DUFFY. No. The liberties involved here-
Mr. DUFFY. That is the fourth amendment. But the first amendment is the one raised here, the right of associational privacy that any association, religious or whatever, has. It is a right to keep anonymous its list of members, the list of donors. There are people who join associations and groups which are unpopular in the eyes of some who would not join if they ran the risk of having their membership or their donations exposed.
So this is in direct answer, Senator: A first amendment right of associational privacy.
Senator SPARKMAN. Very well. (The following letter and statement were received for the record :)
UNITARIAN UNIVERSALIST ASSOCIATION,
Boston, Mass., September 15, 1972. Senator WILLIAM PROXMIRE, U.S. Senate, Committee on Banking, Housing and Urban Affairs, Washington, D.C.
DEAR SENATOR PROXMIRE: I have reviewed the September 8, 1972 letter of William S. Lynch of the Department of Justice. His comments with respect to the Department of Justice's examination of the bank records of this Association reduces to a contention that the examination was a “legitimate investigation for suspected offenses.”
I disagree. The investigation was in violation of the constitutional rights of the Association, as is fully set forth in my testimony of August 14, 1972. Mr. Lynch's comments, which are couched in generalities, offer no rebuttal to the Association's stated position. Very truly yours,
CHRISTOPHER G. RAIBLE,
Assistant to the President.
STATEMENT OF THE ASSOCIATION OF AMERICAN PUBLISHERS
The Association of American Publishers (AAP) believes that the government investigation of the Beacon Press and the Unitarian Universalist Association, described today to this subcommittee, constitutes a gráve threat to the freedom to publish and to other constitutionally protected freedoms.
Because of its concern, the AAP convened an emergency meeting last month in New York to start a defense fund for the two organizations being investigated by the government. We wish to call particular attention to that action because the two government witnesses at these hearings last week said they were unaware of serious abuses of the bank secrecy act that would warrant further legislation protecting the privacy of a citizen's bank records. In directing the attention of this committee and of the Treasury and Justice Departments to the AAP's action in the Beacon Press case, which we believe must eventually be resolved on constitutional grounds, we cite the statement of AAP's chairman, Robert L. Bernstein, president of Random House, Inc., at the emergency meeting.
“I am angered," Mr. Bernstein said, “at the time, effort and money it is going to require to end something that had no right to start-and that even after it is ended will have done so much damage by giving us the government's warning in effect : 'Be very careful, Mr. Book Publisher, because even if we can't win this in court, we can make life so miserable for you that it will be just as bad as if we could win.'”
In the Association's view, the government subpoenaing of Beacon Press-UUA bank records constituted an abuse of freedom of the press as well as other First Amendment rights of Freedom of religion and of association, and of Fourth Amendment protection against unreasonable searches and seizures.
The reason for this invasion of private records by the government was that Beacon Press had agreed with a United States Senator (Mr. Gravel) to publish documents (the Pentagon Papers) which he had already placed in the public record.
At the AAP emergency meeting, Dr. Robert Nelson West, president of UUA said the government investigation clearly was aimed at "harassment, intimidation and repression of legitimate dissent.”
AAP is the trade association of l’nited States book publishers. Its more than 250 members publish at least 85 per cent of the books published annually in this country.
EDWARD M. KORRY, President. Senator PROXMIRE. Thank you, gentlemen, very much. Our next witness is Hope Eastman, representing the American Civil Liberties Union.
Have you a very detailed statement? We have two additional witnesses this morning. We would appreciate it if you could abbreviate your statement and it will be printed in full in the record (see p. 183).
STATEMENT OF HOPE EASTMAN ASSOCIATE DIRECTOR, WASHING
TON NATIONAL OFFICE, AMERICAN CIVIL LIBERTIES UNION Miss EASTMAN. My name is Hope Eastman. I am the associate director of the Washington office of the American Civil Liberties Union. We appreciate the opportunity to appear here this morning to testify
support of the legislation which you have before you.
There has been a great deal said this morning about the interest at stake here for the bank customer. I think it is very important to start any discussion of these bills with this point.
The assumption upon which Senator Tunney's bill is draftedthat the bank records are those of the customer and not of the bank, even though the bank has physical control over them—is a very important point on which to start.
As one of the previous witnesses has described it, the contemporary bank record is indeed a road map, or, as I describe it, a mirror to an individual's life. A bank record reflects the first amendment activities they may be engaged in, causes they may support, and organizations they may belong to. It is very much like an oral account of the things you believe in and belong to an indication of the kind of life that you lead.
So it seems to me that it is very important to start by viewing these records, whether on the assumption of a right of privacy or the assumption of a right of property, as belonging to the individual and as carrying with them an assumption of confidentiality. As bank customers, and as believers in the first amendment and the right of privacy, many of us assumed that the bank customer could rely on this assumption of confidentiality to insure that his bank will not disclose the contents of his bank records.
As I read the legislative history, the Congress of the United States also relied to a certain extent on this assumption. The Congress quite clearly believed that bank records could not be disclosed without legal process of some kind when it enacted the Bank Secrecy Act.
llorarer, we became painfully aware last Friday when the repposentatives of the Treasury and Justice Departments testified that these assumptions were simply wrong. Not only do they consider that the individual has no right to know when legal process is sought, but they stated that the Government has no obligation to seek that legal procom, and that their ability to look around and “fish" through Tank records is limited by nothing more substantial than the good COM fuithi willingness of the bank to let them do so. I do not believe that this is what the Congress had in mind when they had adopted the Bank Secrecy Act. I believe that these revelations represent the most compelling reason for enactment of the legislation under consideration today.
There are other reasons why this legislation is needed. The other witnesses have referred this morning to a long line of Supreme Court cases which are designed to safeguard the confidentiality of associational membership and donors. I will not go through those cases at any length. Suffice it to say that the Court has recognized that at the heart of being able to associate freely is the ability to preserve the anonymity of members and contributors. Yet we are aware from our experience as counsel to a number of peace groups that Government officials have sought ways to evade these constitutional limits. Unable to compel the organizations to disclose this information, they have gone to the banks and attempted to obtain checks deposited in the account as a means of obtaining information about donors and members.
Over the last year and a half to 2 years a number of groups—the United States Servicemen's Fund, the Progressive Labor Party, the People's Coalition for Peace and Justice, the Fifth Avenue Peace Parade Committee, and a number of individuals--have all had experiences with FBI or congressional investigating committee going to banks, asking for bank records, in some instances being given those bank records without any legal process at all, or in other instances being given access to the bank records with a subpena, but without notice to the customer. In a couple of cases, the groups were given notice by the bank prior to compliance with the subpena and were able to go to court and get a protective order. But in other instances, as outlined on page 3 of my testimony, the information was made available without any opportunity for the individuals or groups to take steps to protect themselves.
As a result of this litigation, the ACLU sent a letter to the Nation's 100 largest banks asking them about their practices in this area, and recommending certain minimum standards to insure notification to and privacy of bank customers.
The responses which we received to this letter indicate there is no uniform banking practice in this area. Some banks do not disclose information without a subpena. Other banks, as Mr. Anderson and others have testified this morning, seem to be willing to do so, and indeed indicated to us that they did do so. Other banks would not disclose without a court ordered subpena. Other banks will disclose in response to an administrative subpena. Some indicated it was their policy to give notice to the customer. Others indicated that it was not their policy to give notice to the customer.
Thus there is no bank practice on which we can rely in order to see that the customer is given notice.
Moreover, as the Government testified here on Friday, they very much rely on informal bank compliance with requests from the government. The result is that these activities are carried out by the Government without any review by anyone outside of the law enforcement or executive branch. Without notice to the bank customer, the Government is totally free to engage in the “fishing expedition” which Congress feared.
18. Such broad access and investigation by the FBI, grand jury and Justice De partment regarding details of the finances and programs of the Association with the resulting connotation of possible wrongdoing and criminality would tend to inhibit and impair the full practice and expression of the religion of some members and decisionmakers in our denomination.
19. I believe that such broad access and investigation would subject our denomination to governmental intimidation and harrassment, repress legitimate dissent, and infringe upon the religious freedom and the freedom of the press guaranteed by the First Amendment of the United States Constitution. In witness whereof, I have set my hand this eighth day of January, 1972.
ROBERT NELSON WEST.
Reverend RAIBLE. On Thursday, November 4, 1971, the treasurer of our association received a call from the vice president and cashier of the Boston bank where we deposit virtually all our funds, notifying us that the FBI had a number of its agents at the bank examining our financial records. The vice president said they had been served with a subpena calling for the production of copies of UUA and Beacon Press checks. Beacon Press, as you may know, is a department of our association that publishes books on a nonprofit basis.
Our reaction to this news was one of shock and dismay. We knew that the Constitution insures the separation of church and state, and the guarantee of freedom of religion. We thought that the Government had no right to be surreptitiously studying financial records of our religious denomination.
It was late in the afternoon when we were first notified of this FBI investigation and it was impossible that day to take any formal steps to halt the investigation. When we called the bank vice president again, we were told that the FBI had come to the bank to look at all eight UUA accounts; that the agents had first appeared at the bank early in the preceding week asking to look at the UUA records but had been refused; that the agents returned later that same week with a subpena for the records; and that they had been examining the records for at least 2 days.
We also learned that, after being served with the subpena, a subordinate bank official had called the office of the U.S. attorney and complained of the heavy burden of producing the quantity of records called for. He was told that the FBI would furnish the manpower to go through the bank's microfilms. Upon learning all this, we insisted that the bank withhold records from the FBI until we had an opportunity to halt the investigation by legal means.
Later that evening, we again called the bank vice president at his home. We then learned that the subpena called for all checks drawn on and all deposits made to all our accounts during the 412-month period from June 1, 1971 to October 15, 1971. We also learned that the subpena served upon the bank was a grand jury subpena that did not call for the production of our bank records until the following Wednesday, November 10, 1971.
We, understandably, expressed our surprise and dismay that the FBI had already examined our accounts since the subpena did not call for the production of our records for several more days, and then only to the grand jury. The bank vice president then agreed to refuse to permit further inspection of our records until we had an opportunity to determine more fully what the FBI had seen and to decide what steps we could take to bring a permanent halt to the investigaton.