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Excerpt from the SAR Activity Review
Subpoenas for Electronic Records By the Federal Bureau of Investigation

SARs serve as leads for criminal and civil investigations. These leads often result in federal law enforcement agencies obtaining additional records by subpoena from financial institutions. A recent development in subpoena practice promises to streamline these investigations.

The Department of Justice (DOJ), Federal Bureau of Investigation (FBI) and Internal Revenue Service Criminal Investigation Division (IRS-CI) have developed a standardized attachment for grand jury subpoenas, and similar legal process issued under Federal Rule of Criminal Procedure 17, that requires the production of bank records in their original electronic form. This new subpoena attachment standardizes the format and terminology for obtaining electronically stored records from financial institutions. It is designed to remedy situations in which electronic records are downloaded, printed onto paper and then produced, only to have the law enforcement agency reverse that process and convert the paper records back to electronic data for review and analysis. This practice is costly and inefficient for both financial institutions and law enforcement.

The subpoena attachment does not represent a legal or policy change but simply relies on Rule 17(c) of the Federal Rules of Criminal Procedure, which explicitly includes “data” among materials subject to production. The scope of records to be produced under this new subpoena form has not changed but the form of production is now specified to be electronic data. (The Federal Reserve is in the process of revising Regulation S (12 CFR Part 219), including reimbursement terms for production of electronic records.)

The new subpoena form also provides standards for electronic data production. It requires that electronic data be produced in a useable format, and it specifies two types of electronic data: text data and image data. Text data, including account transaction data, are to be produced in either a non-proprietary format or within a software application that can export it without loss of data to a non-proprietary file format. Image data must be produced in non-proprietary or commonly readable formats at the highest resolution available.

The subpoena attachment provides instructions for use of encryption when transmitting data and for data verification, such as hash coding. These and other issues can be discussed and agreed upon with the relevant investigative agency prior to the production of records, similar to current subpoena response procedures.

A shared goal of the DOJ, FBI, and IRS-CI is to provide information that will assist financial institutions and their support operations in complying with the new subpoena attachment. This includes working with financial institutions during the transition period in coordinating the requests and associated responses to subpoenas. Any questions concerning the subpoena attachment can be directed to the Electronic Bank Records Project coordinators at (202) 324-8571 (FBI) or (703) 822- 8410/(858) 430-1136 (IRS-CI).

Attachment to Subpoena Duces Tecum

PRODUCE THE FOLLOWING:

Any and all records in your possession, custody or control including but not limited to:
Account transaction records existing as electronic text data;

Items relating to account debits and credits existing as electronic image data;

[Specify other records sought (e.g., statements, signature cards, applications, correspondence)]

account number(s):

account holder(s):

tax identification number(s):

other identifier(s):

for the period __/__/____ through __/__/____.


INSTRUCTIONS FOR PRODUCTION OF ELECTRONICALLY (DIGITALLY) STORED RECORDS

I. General

A. Electronically stored records shall be produced in electronic form and shall include those records held:

1. In your record retention systems; and/or

2. By your technology, data, or other service provider(s).

II. Text Data

A. Text data relating to transactions (e.g., core data, history file) shall be produced within a data file:

1. Using delimited ASCII text data format; or

2. Within software that can export without loss of data to a non proprietary file format; or

3. Using commonly readable file format set by agreement.

B. Text data files relating to transactions produced according to II.A. shall include field descriptions (e.g., account number, date/time, description, payee/payor, check number, item identifier, and amount).

III. Image Data

A. Image data shall be produced in graphic data files in a non proprietary or commonly readable format with the highest image quality maintained.

B. Image data of items associated with specific transactions (e.g., checks, deposits) shall be:

1. Produced in individual graphic data files with any associated endorsements; and

2. Linked to corresponding text data by a unique identifier.

IV. Encryption/Authentication

A. Electronically stored records may be transmitted in an encrypted container.

Decryption keys shall be produced separately at the time the data are produced.

B. Authentication, such as hash coding, may be set by agreement.

Contact [ ] with any questions.

Excerpted from SAR Activity Review Issue 13, page 33







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