Prologue: From Facebook To FATCA

Circa 2013: From Facebook to #FATCA – How Social Media Has Created A "Lack Of Privacy" Consciousness in America https://t.co/q7bIEFW5rd via @USCitizenAbroad

— U.S. Citizen Abroad (@USCitizenAbroad) August 12, 2020

The above tweet references a 2013 post suggesting that the rise of Social Media in the United States resulted in a diminishment in the value of privacy in the United States. At a bare minimum, FATCA is an assault on privacy rights.

Jenny’s UK FATCA Lawsuit Is Based On The FATCA IGAs Violating Privacy Rights

Jenny’s UK based FATCA lawsuit (impeded largely by US citizens abroad) is based on the idea that the FATCA IGAs violate the privacy rights afforded to UK citizens. In general, the lawsuit is based on the claim that the automatic information reporting mandated by FATCA (requiring disclosure of ALL accounts) is disproportionate to the stated objective (identifying tax evaders). This argument has been advanced in a UK/European context because of the GDPR. In other words, Europeans have data privacy rights. Americans do NOT have data privacy rights. Recent cases (2020) have reinforced that the United States is NOT a safe place for the transmission of DATA (Schrems II) or for the transmission of PEOPLE (Federal Court of Canada decision regarding refugees).

At a bare minimum, these decisions suggest that individuals are afforded a higher standard of individual rights outside the United than inside the United States.

The stronger the evidence that individuals do NOT have rights to their personal data in the United States, the strong the claim that transmission of data (including FATCA) conflicts with the rights guaranteed to individuals in the GDPR. US Treasury has just released published the quarterly “Name and Shame List”. Does the fact of publishing such a list suggest a low standard of protection of information/data in the United States? Jenny’s lawyer believes so …

The S. 6039G Liberty List is to name + shame tAmericans who commit #citizide AKA renounce US citizenship. As lawyer for @CrossBriton #FATCA lawsuit says: PUBLICLY shaming reinforces that USA is not a safe place for the transmission of personal info. https://t.co/c9zAMSfJpb pic.twitter.com/79CRe6zcqG

— U.S. Citizen Abroad (@USCitizenAbroad) August 12, 2020

The full text of Mr. Noseda’s argument in a letter (which includes comments attributed to Bruno Gentiloni of “Gentiloni Doctrine” fame) is here:

7 Aug 2020 to EDPB_PETI_ICO re NAME SHAME_ List

Contextual background to Section 6039G

Section 6039G is found in:

26 U.S. Code Subpart A—Information Concerning Persons Subject to Special Provisions

Specifically it says:

26 U.S. Code § 6039G.Information on individuals losing United States citizenship

(a)In general

Notwithstanding any other provision of law, any individual to whom section 877(b) or 877A applies for any taxable year shall provide a statement for such taxable year which includes the information described in subsection (b).

(b)Information to be providedInformation required under subsection (a) shall include—

(1)the taxpayer’s TIN,
(2)the mailing address of such individual’s principal foreign residence,
(3)the foreign country in which such individual is residing,
(4)the foreign country of which such individual is a citizen,
(5)information detailing the income, assets, and liabilities of such individual,
(6)the number of days during any portion of which that the individual was physically present in the United States during the taxable year, and
(7)such other information as the Secretary may prescribe.

(c)PenaltyIf—

(1)an individual is required to file a statement under subsection (a) for any taxable year, and
(2)fails to file such a statement with the Secretary on or before the date such statement is required to be filed or fails to include all the information required to be shown on the statement or includes incorrect information,
such individual shall pay a penalty of $10,000 unless it is shown that such failure is due to reasonable cause and not to willful neglect.

(d)Information to be provided to Secretary Notwithstanding any other provision of law—
(1)any Federal agency or court which collects (or is required to collect) the statement under subsection (a) shall provide to the Secretary—

(A)a copy of any such statement, and
(B)the name (and any other identifying information) of any individual refusing to comply with the provisions of subsection (a),

(2)the Secretary of State shall provide to the Secretary a copy of each certificate as to the loss of American nationality under section 358 of the Immigration and Nationality Act which is approved by the Secretary of State, and
(3)the Federal agency primarily responsible for administering the immigration laws shall provide to the Secretary the name of each lawful permanent resident of the United States (within the meaning of section 7701(b)(6)) whose status as such has been revoked or has been administratively or judicially determined to have been abandoned.

Notwithstanding any other provision of law, not later than 30 days after the close of each calendar quarter, the Secretary shall publish in the Federal Register the name of each individual losing United States citizenship (within the meaning of section 877(a) or 877A) with respect to whom the Secretary receives information under the preceding sentence during such quarter.

Think about it. What conceivable purpose could there to the mandated disclosure found in Section 6039G? Remember that this is a PUBLIC disclosure. It’s not a list for the State Department to keep track of citizens …

No, Section 6039G is an example of Congress at its most vicious and mean spirited. Clearly, Congress is generally of the view that anybody who would renounce US citizenship is at worst an enemy of America and at best renouncing for the purpose of avoiding US taxation. The men and women who compose Congress are severely disconnected from reality. As Suzanne Herman points out in her comment below:

Not to mention the FBI has its own list where renunciants are lumped together with fugitives, convicts, drug addicts, people dishonorably discharged from the military and people subject to domestic violence-related restraining orders.

Perhaps the reason for the hostility toward renunciants is that (as suggested by President Bush in 2001):

You’re with US or you’re with the terrorists!

Does inclusion on the “Name and Shame” list have the effect of shaming anybody? It never occurred to Congress that inclusion on the “Name and Shame” list, would be considered by those lucky enough to appear (everybody knows the list is inaccurate), to be a matter of pride and honour.

I THOUGHT THAT THE renunciation LIST CONSTITUTES THE honor roll OF THE brave souls DITCHING SLAVERY.

— Trokani (@Trokani1) August 12, 2020