Hannah Bloch-Wehba
US continues to receive wholesale financial data from EU banking org. without a warrant
The Europol Joint Supervisory Body (JSB) recently released a report confirming that the U.S. continues to receive wholesale data from Belgian banking clearinghouse SWIFT under the auspices of what’s known as the “Terrorist Finance Tracking Program.” A little background: after September 11, Treasury began retrieving vast quantities of data from SWIFT’s U.S. servers–without a warrant. SWIFT, an international banking consortium, processes hundreds of millions of transactions a year, creating a rich source of financial data that was ripe for the mining. The program fell directly under the holdings in Smith and Miller that indicated that financial information shared with a third party was “knowingly exposed” and therefore not protected by the Fourth Amendment’s warrant requirement. When the program came to light in 2006, it triggered a backlash from E.U. and Belgian data protection officials, who deemed it in violation of EU Directive 95/46/EC. To save itself, SWIFT pulled its servers from the U.S. and now stores all its information in Switzerland; to save the program, and the transatlantic relationship, the E.U. and U.S. concluded an agreement under which data could only be transferred to the US under certain conditions and with the JSB’s supervision.
Yesterday’s JSB report indicates that not a single US request for information has been denied, and that the requests have covered a continuous time period–gutting the Program’s requirements that data-sharing be minimized. More to the point, it raises questions about Europol’s ability to oversee the Program at all–and about the commitment, on both sides of the Atlantic, to preserving financial privacy, due process, and accountability.