Assertion

- Thou shalt not covet anything that is thy neighbor's -

This page was last updated on Sunday, February 17, 2013


Personal Property and Banking Records

Suppose you have a tooth with a large gold filling and the tooth has to be pulled. An honest dentist would give you the gold but charge you for the extraction. However, a bank will charge you for the extraction and keep the gold. That's what this essay is about. The malicious desire for what belongs to another. This is not a new subject, on the contrary it is thousands of years old and is found in the Tenth Commandment.

Is That a Hole in Your Pocket?

The Constitution does not protect personal privacy. Moreover, the Forth Amendment does not prohibit the Government from obtaining information to be revealed to another party. At that point, the integrity of the collection is in doubt because the means and collection were tainted.  This is more true if such information would put the disclosing party at a disadvantage. The courts have said that the risk of being covertly spied, eavesdropped, recorded, betrayed, or deceived is inherent to human society and cannot be stopped.

The point is that we do have laws against trespassing but those laws are hard to enforce and the owner cannot use effective means to prevent it. For an example, fences are either banned or are subject to height and appearance limitations. For the most part, we are afflicted with legions of bureaucrats, publicity seekers, and busybodies who make money through exploitation of others.  The real issue is that prosecutors and other people have the right to spy on bank accounts and the banks won't tell you about it.

According to one article, the courts in the past have compared the expectations that a person may have toward an acquaintance with those expectations that a person has toward a business. That point is highly suspect because mere casual familiarity is not at the same level of consideration as one would apply to another who is trustworthy. However, companies exist by some sort of legal recognition such as a business license but almost anyone can get one of those and some may be required to do so in some areas.   However, reputation says more than that, it is a person's bond.

The Connection

A check is a document written by the payor that orders a bank to pay money from a bank account. It’s not any bank account, it is the bank account of the person who wrote the check. So the drawer writes in the details, including the amount, the date, and the name of the payee. Then the drawer signs it to order the bank to pay the written and printed amount to either a specific person or the bearer of the check. If the drawer’s signature and the printed and written amounts do not match, then the bank must not honor the check. So the purpose of a check, other negotiable instruments become clearer. No one had to carry around a large amount of gold or silver. Aside from that, gold is nearly twice as dense as lead and that could put a hole in your pocket or purse.

Negotiable checks and deposit slips are actually the property of the account holder and not the bank. They are the customer’s instructions to a financial institution to pay to money to the payee named on the check and then return the cancelled check to the owner. Sometimes the check may have additional endorsements because it was used in its original form as a promise to pay. So the cancelled check became proof that the owner and its subsequent owners had paid a bill. In this way, a check is much like a page in a diary or personal log.  Now the banks will tell you a different story

The courts did not distinguish information held by the bank by virtue of being a party to a legal transaction. Those transactions include opening and closing accounts, accepting deposits and withdrawals, and acting as an intermediary. The Government, in turn, has created a means of tracing transactions so that it could monitor every person’s income and outlays including the names of the payers and the payees.  This means that two-year-old Timmy who received a cash birthday gift from his Uncle Ambrose McGooley would now be monitored by the government as a possible money launderer.

Before the privacy acts and policies of the 1970's, many people thought that records about their personal life where no one else’s business but their own. However, that wasn’t true. It was one of the government’s most concerted endeavors up to that time to collect information about people and businesses and government shared in the collection of that information.

Banks and Privacy

Years ago, banks routinely returned cancelled checks to their customers but that is not true today. Instead the customer receives a listing of their checks and may have to pay extra for the bank’s imaging services. But that’s not the same thing because in the past, the checks were the account holder’s property and not the banks. The only reason that another party would want those checks is that they could use them at a future date for illegal purposes. One distinctive feature of ownership is the right to alter, correct, or destroy your own property.

Most people do not know this but the federal government requires financial institutions, through the Bank Secrecy Act, to spy on their customers. The Bank Secrecy Act requires financial institutions to spy on their customers and report any suspicious activity that may be ‘relevant’ to a possible violation of a law or regulation. A law enforcement agency does not have to be suspicious of an actual crime before it gets a report, and no court order, warrant, subpoena, or even written request is needed. This means that local law enforcement agencies and your local District Attorney are entitled to unfettered access to your bank accounts. These "Suspicious Activity Reports" are filed with the Treasury Department’s Financial Crimes Enforcement Network (FinCEN).  A law enforcement agency does not have to be suspicious of an actual crime before it gets a report, and no court order, warrant, subpoena, or even written request is needed. This means that local law enforcement agencies and your local District Attorney are entitled to unfettered access to your bank accounts without your permission.

The Bank Secrecy Act authorizes the Treasury Department to require financial institutions to maintain records of personal financial transactions that may have a high degree of usefulness in criminal, tax and regulatory investigations and proceedings. This Act also authorizes the Treasury Department to require any financial institution to report any transaction could be or might be related to a possible violation of a regulation or a law. These reports are to be filed with the Treasury Department's Financial Crimes Enforcement Network.

This is done secretly, without the consent or knowledge of bank customers, any time a financial institution decides that a transaction is "suspicious." The reports are electronically sent to every U.S. Attorney's Office and to 59 law enforcement agencies, including the FBI, Secret Service, and Customs Service. A law enforcement agency does not have to be suspicious of an actual crime before it requests a report, and no court order, warrant, subpoena, or even written request is needed. They can obtain this information from the Treasury Department.  Moreover, a bank can report your financial activity to anyone who wants it and this is how others can get your personal information.  Local law enforcement agencies including the District Attorney can freeze or close your account or put it in another person’s name without your knowledge. This means that any checks that you may have written would not be honored and you can be arrested for passing forged or bad checks with insufficient funds.

No Privacy Law in Banking for Ordinary Citizens

This is why personal information can be circulated worldwide on the Internet. Although many countries have passed data protection laws to address privacy concerns, the power to intrude on a person’s private life has superceded the right to be left alone. Although the Privacy Act of 1974 limits access to personal information contained in the federal government's records, people who have access to this information can sell or distribute it. The going price is how much others are willing to pay for it. While laws are supposed to protect the privacy of personal information, they really don’t.

Society had, in fact, recognized many expectations of privacy toward businesses for some time. The problem is that the records required to be kept by the Bank Secrecy Act are available to any person on their request. That violates principal right of ownership, the right to conceal, change, give away, or destroy your own property. Of course your heirs may have something to say about that. The point is that when a person has to give some specific information to obtain a specific service that doesn’t mean that they must reveal other information to get it because that would be extortion. However, that is exactly what is happening.

Moreover, the government monitors bank accounts, financial transactions, and nearly every other kind of personal information. So if you are about to receive a raise in pay, others will probably know about it before you do. However, the more insidious concern is that law enforcement has automated access to your bank accounts. That’s why it is so easy for them to collect information about you and often without your knowledge or consent. George Orwell’s ‘1984' has come and gone but big government is still covertly watching your every move and transaction. That’s why many lawmakers, prosecutors, and judges are part of the problem and not the solution. So it’s time to pluck the feathers of these turkey-cocks.

Update

Thursday, December 30, 2011, a three-judge panel of the 9th U.S. Circuit Court affirmed a lower court ruling that the Foreign Intelligence Surveillance Act is constitutional. Congress passed a law in 2009 that protected telecommunications companies the allegedly helped the U.S. Government to spy on Americans [sic] without warrants. Note: The report did not distinguish between citizens of the United States and citizens of other countries.

 

False Claims of Abuse

Libel and slander are related in that both concern an unprivileged or malicious publication (libel) or oral defamation (slander). So when a woman falsely accuses her husband of some crime, she may be actually committing both together and this is also true of any other allegation. So this is a choice to print only part of the truth or the whole true.  So the newspaper is not responsible for the official reports, though false, of a law enforcement agency but they are responsible for failure to disclose that they are false.

Years ago, the Congress and state legislatures passed mandatory arrest laws to criminalize men and give women a legal advantage in court. Moreover she got the house and his bank accounts and that made it harder for him to prove his case. The problem is that most newspapers rely upon the police to provide local news but the news media is not able to verify every report. Moreover, it is a matter of preserving good relations with local news sources without burning bridges. So in one sense, a newspaper can be only too willing to please the police. If others learned the truth, they would want to change the law but Congress is unwilling to do that.

So the only other recourse is to sue for the violation of their privacy but sometimes the cost of litigation can outweigh any benefit. By then the damage is done and nothing can change that. The point is that most people might recall that a man was accused of rape but they will not recall that he was innocent. In their mind, he got away with it.  So the real issue is that those who falsely accuse others are rarely exposed and you don’t find that fact in the news media. For an example, a woman accuses her husband of rape and abuse and the police have arrested him. That gets printed because it is deemed ‘newsworthy’ and if he is exonerated, that is not newsworthy because she's is protected by the ‘shield laws’. Wouldn’t you want to know that a pervert is living in your area especially if she is female?

Stealing a Man's Home and His Livelihood

When a man works from home, as more people are now doing, additional problems arise. Under most court orders, he will be summarily evicted without notice, and thus lose access to phones, business records, and equipment, without recourse. This means that he cannot earn income although he may be ordered to pay spousal support. The problem is that his own separate bank account was emptied by his wife. The police are often in cahoots because there no privacy law in banking. So the authorities do not have to inform the account holder (you) that they are monitoring your account.

Worse yet, is that a man can be ordered by the courts to leave his home that he owned before his marriage. While most states recognize separate property, they also realize that it can be used as leverage that would strip a man of his real and personal property. This is often done by altering the text to change its legal effect. That’s why she still gets his home, his property, and his means of earning a living.

Privacy

The Privacy Act of 1974 was supposed to limit access to personal information of other people stored in the government’s records. The problem was that a single memory unit could be produced to keep track of trillions of people. So with portable storage arrays, crooks can copy and walk away with several petabytes of personal information and no one would notice until it was too late. At present, there are more than 6.9 billion people in the world and if these micro components could be assembled in vast arrays, they could store vast information on several trillion people. It is similar to a quantum leap in capacity without limitations on how that capacity is to be used.

The Right of Privacy is the right claimed by individuals to be left alone and the right to control certain information about themselves. It also covers people's freedom to decide their personal lives in the face of government attempts to regulate behavior. While the laws of most nations accept and acknowledge some right to privacy, the right to privacy is not absolute. Moreover, declarations of privacy do not have the force of law.

The Constitution of the United States does not specifically grant a right of privacy. But courts have interpreted certain amendments as protecting privacy in many areas. The First Amendment protects the right of individuals to associate with others. The Fourth protects individuals against unreasonable searches and seizures by government officials. The Fifth says that persons have the right to refuse to testify, if that testimony would incriminate them. While some claim that this right is absolute, it is not.   While some authors say that the Fourteenth Amendment protects privacy in certain matters, I don’t see it, it was supposed to provide equal protection of the laws and no more but that’s my opinion. The real problem is that men do not have equal protection because the lawmakers have made that so.  That's why I support the equal rights amendment.

The Government’s Right to Spy

Many people keep diaries as a personal record or journal and most do not intend that other persons would have them or read them, not even their spouse. That’s why these papers are the exclusive property of their owner and no one else. However, the government's assertion is that it has the right to spy on you and report what they have to other agencies who are keeping a secret watch on its citizens and their bank accounts. The purpose of this spying is to obtain information that could or would be conveyed to another person or government entity. In turn, this information could be used against a person to falsely accuse them of some crime or extort things of value from their rightful owner. Would you consent to this extent of government intrusion into your life?

Most people would probably refuse without realizing that the government controls many things in our lives. Most of these controls are a product of those regulatory agencies that government has created over time. Probably the earliest example came from fees and permits where a person couldn’t sell or do anything without paying a tax, buying a license or obtaining a permit. This craziness became more absurd when governments began taxing the taxes that had to be payed and so government became a defacto means and instrument of extortion.

So it doesn’t make any difference that the original check or a deposit slip is used by the bank to facilitate some legal function. The issue here is that the owner has a legitimate right to depose of their own property as they see fit. After all, it is their property and no one else’s. Otherwise, the bank or other financial institution would have committed an illegal act of conversion and that is illegal.  It also runs counter to the expectation of privacy and honesty.

Postdated Checks

A postdated check is one made in the present to be cashed at a written date in the future. In other words, a postdated check is simply a promise to pay at a future date that is written on the check. This is only illegal when the postdating was meant to defraud the payee. The reason for this is that all checks are promissory notes to be paid on or after the date written on the check. This means that the payee has no right to demand payment until the date of payment specified on the check has been reached. This is the date when the check becomes due.  When you think about it, every government check that you have received was postdated.

Upon payment, the check is returned to the payer so that the check can be used to balance and verify the account. After that, the check can be saved or destroyed by the owner. After all, a check is just another kind of personal diary or ledger and the protection of those documents is found in the Forth Amendment. So the question is this, what is a reasonable search and then, what is a reasonable seizure? Do we have to wait until midnight when the carriage turns back into a pumpkin and the mice scamper away?

Microfilmed Copies and the Official Warning

There are several problems with microfilmed copies. The rule of ‘best evidence’ requires that the most reliable evidence be used. So where the original document is available, a copy of that document cannot be accepted as the best evidence. The second part of the problem is that the imaging process can be used to alter the appearance of the check by changing the amount or forging a signature. So the owner has a legitimate expectation of conformance because the checks are instructions to the bank to pay to the order of the payee upon or after the date of the check. So a check cleared by a financial institution or a cancelled check may serve as proof of payment.

I opened an account with a bank recently after not having one since 1993 (19 years). Many things have changed over the years and this is expressed by notice given by First Bank here in Vallejo, California. "The bank may not physically examine all checks to determine if they are properly signed or completed. The bank says that the account owner agrees that the bank may rely on this process and it is deemed an acceptable standard of care." This is an example of an adhesion contract because it means ‘take it or leave it’. The customer has no recourse but to comply or go to another bank that may have the same objectionable requirements.  This is an example of an adhesion contract because it means 'take it or leave it' because the customer has no recourse but to comply or go to another bank that may have the same requirements.

Confidential Purpose

This question is based on the concept of probable cause and its definition. A check is simply a negotiable paper used to instruct banks to transfer funds from one account in a bank to another account that could be in another bank. The check itself is not a confidential communication but it could be a negotiable instrument with a confidential purpose, for an example, buy two lanterns.  Paul Revere probably did not shout that the British are coming because most of the colonists considered themselves British. He probably warned that the Regulars are coming since they were most likely to pose an immediate threat. Especially if the Regulars were quartered in the colonist’s homes and so these colonialists had no privacy. So the Constitution was made to enforce the right of the people to be secure from unreasonable searches and seizures. So the question becomes this, what is unreasonable and who decides? The issue is really this, are those people who have eminent powers of decision are entitled to exercise those powers to the extent of abuse? My answer is no.

Bank Secrecy Act - Its Actual Purpose

The actual purpose of the Bank Secrecy Act was to spy on the citizens by forcing them to keep their money in a bank that is within the jurisdiction of the United States. In this way, the rich could still have their offshore accounts by taxing the poor to subsidize the rich. But the secrecy act goes further. These records would be useful in spying on citizens through covert proceedings and investigations. But that doesn’t change the fact that the actual records are the property of the citizen and not the Government. Otherwise, the government’s search and seizure would be more aligned to pillage, looting, and theft.

Many banks had traditionally kept permanent records of their depositors' accounts, although not all banks did. The reason for this was that the banks could use this information to track down persons within the bank who might be using those accounts for money laundering, check kiting, embezzlement, or some other scam. While some banks may have kept permanent records of their customer’s accounts, this was more likely to be an institutional artifact that was based on their traditional way of doing business. So this was a defining feature that distinguished one institution from the rest. It’s the preservation of records that insure that owner of an account may have their funds. It is also a legitimate way of conveying ownership of the funds from the payer to the payee or from a donor to the beneficiary.

However, the real problem is that a local prosecutor may also have access to this information and then use it to create a diversion to deprive a targeted person of their funds. This is easily done by falsely charging the victim with a crime. Although the victim can probably clear himself, he no longer has his funds to use at his discretion because the funds were consumed by having to defend himself against the prosecutor’s bogus charge. So who prosecutes the prosecutor who is using their position to violate and profane a person's liberty?

It’s not the record keeping that is bothersome, it is the misuse of the records that comes from it and this is why the Fourth Amendment was written. However, those who would oppose this right would merely claim that it was a way of insuring that the proper records were available when they wanted them and not when they needed them. That’s the important distinction that some law enforcement agencies usually make.

However, most people would probably want all papers that they had supplied to a bank or other financial institution to remain confidential. Moreover, they would want to keep the original papers in a safe place where they may get to them without the requirement of having to pay for something they already own. To allow a police officer or prosecutor to have another person’s original personal records without proper protection and oversight is hard to fathom because it leads to abuse of power.  Theft is the taking or removing of another’s personal property with intent to deprive them of it and it possession proves intent.

The Ultimate Receipt

Most of us perceive that a canceled check is the ultimate receipt, proving not just that they had purchased the item but that your check was deposited in a bank by the payee. Moreover, if you had ordered something that you never received, your canceled check is proof that you had paid for it. Also, a cancelled check is considered proof of payment by the Internal Revenue Service for some service or item that was deductible. That is why people want their cancelled checks as proof that they had made those payments.

The problem is that some banks will not return canceled checks although they are the customer’s property. However, according to current information, the IRS will consider a bank statement as proof of payment. The statement must show the check number, the date written by the payer on the check, and the name of the payee. It must also include the amount of the check, and the date that the bank posted the check to the account.

The IRS accepts certain financial statements as proof of payment and those who retain those statements will not be required to keep their canceled checks or other information as proof of payment. Apparently, most credit-card and electronic transfer statements already include that information. Moreover, many banks do not return canceled checks to their customers but keep electronic and microfilm records of those papers. This means that banks can reproduce copies of those transactions and convey them to a third party.  However, a person can keep a personal ledger of their income and expenses. This ledger may include any income and any invoice, payment, or receipt marked ‘paid’. Of course, the ledger always has to include the date of transaction include to whom the outlay went and from whom the income came.

Proof of payment can be also authenticated without receipts or canceled checks. These sources include invoices mark ‘paid’, a copy of a check marked paid, or a bank statement. Although a payment may be authentic, it is still necessary to prove the relationship between the payment of expenses and the deductions claimed. So keep the receipt or keep the copies of your token or canceled checks.  Most scanners can do that.  Wouldn’t that be a revelation if they didn’t match?
 

Edward Steven Nunes


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