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Mutual Legal Assistance Treaties Are Best Option for International Subpoenas
Congress enacted the Anti-Money Laundering Act of 2020 (AMLA) in January of this year, and much has been written about how it constitutes the most significant change to the U.S. anti-money laundering regime since the passage of the USA Patriot Act almost 20 years ago. However, one provision of the AMLA was added with little fanfare and minimal discussion, yet it could have a significant impact on foreign financial institutions doing business in the United States.
Section 6308 of the AMLA expands the authority of the Departments of Treasury and Justice to seek and obtain banking records located abroad, while limiting the ability of foreign financial institutions to oppose production of those documents based on prohibitions under local banking laws and regulations. An open issue, however, is whether §6308 was intended to upend traditional processes designed to respect the sovereignty of foreign nations. We think it does not — and should not — and we discuss our reasons here.
|The USA Patriot Act
Section 5318 of the USA Patriot Act, enacted in the wake of the 9/11 attacks, granted the Treasury and DOJ the power to subpoena any foreign bank that maintains a correspondent account in the United States and to request records "related to such correspondent account," including records maintained abroad. The foreign bank recipient of a subpoena under §5318 could, in response, move to quash the subpoena by arguing that compliance with it would violate the law of the jurisdiction from which the documents were sought.
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