SWIFT is a company based in Belgium that provides banks a secure network for money transfers. The company transfers more than $6 Trillion per day amongst its member banks.

After the events of September 11, 2001, the Bush administration issued administrative subpoenas to SWIFT so that it could look for information about who may have provided funding to the terrorists. Because SWIFT maintains facilities in the United States, it complied with the subpoenas.

While SWIFT's actions may seem reasonable on their face, they violated the law. The constitution requires that when the federal government seeks information that it plans to use in a criminal prosecution, a judge must be involved. This happens when a search warrant is issued. Administrative subpoenas do not require a judge's signature.

Besides the constitutional question, the United States also has a law called the Right to Financial Privacy Act. This law limits what financial information the federal government may seek, and limits the circumstances under which the government may seek such information. Violations of the law would allow SWIFT to be fined up to $100 per circumstance.

The law suit against SWIFT was filed by two plaintiffs but attorneys are seeking to have it turned into a class action suit. If they accomplish this, SWIFT could be fined well over $1 billion.

Attorneys for SWIFT had sought to have the suit thrown out of court. But Judge Holderman agreed with the plaintiffs attorneys that the suit should go forward saying that the suit contained"sufficient allegations" to move forward. In his decision, the judge wrote, "Unfettered government access to the bank records of private citizens [is] constitutionally problematic."

Steven Schwarz, a lawyer for one of the plaintiffs said, "The Swift program is another example of reckless disregard for the Constitution and values that make us who we are as a nation."

The incident that triggered the suit only came to light after the New York Times ran a story on it last summer. SWIFT tried to defuse the situation by releasing a statement that the company had a longstanding history of complying with government requests in the countries which the company serves.

The case will eventually be heard in Virginia, where SWIFT's US Headquarters are located.

by Jim Malmberg

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