On February 5, 2010, the Financial Crimes Enforcement Network (“FinCEN”) issued a Final Rule (“Final Rule”) that significantly expands the information sharing program of Section 314(a) of the USA Patriot Act (the “314(a) Rule”) and allows certain foreign law enforcement agencies as well as State and local law enforcement agencies (investigating terrorist activities or money laundering) to request that FinCEN solicit on their behalf information from U.S. financial institutions.

Prior to the Final Rule, the 314(a) Rule only allowed a federal law enforcement agency (“Federal Agency(ies)”) to request that FinCEN solicit, on the Federal Agency’s behalf, certain information from U.S. financial institutions (“314(a) Query”). Pursuant to a 314(a) Query, FinCEN may require a U.S. financial institution to search its records to determine whether the U.S. financial institution has maintained an account or conducted a transaction with a person or entity that a Federal Agency has certified is suspected of engaging in terrorist activity or money laundering based on credible evidence.

Foreign Law Enforcement Agencies

The Final Rule states that, in order for the United States to satisfy its treaty obligations with certain foreign governments, FinCEN will extend the use of the 314(a) program to permit requests from foreign law enforcement agencies. Under the Final Rule, foreign law enforcement agencies will be able to use the 314(a) Queries in a way analogous to how federal criminal law enforcement agencies currently access the 314(a) program.

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