UBS Deal Only a Partial Victory for the Feds

Today, after a long and protracted battle between the U.S. and Swiss government, Swiss bank UBS AG agreed to turn over the names of at least 4,450 U.S. holders of accounts in Switzerland who may have violated U.S. tax laws. While the Obama administration may paint this as a victory, this number is less than 10 percent of the 52,000 names it had originally asked for. It is even lower than the estimate of 5,000 to 10,000 names that news reports speculated UBS would turn over once the agreement was announced.

Yet in a sense, this settlement is at least a partial victory — for privacy rights, international relations, and the rule of law. The U.S was forced to back away from its outrageous demands that would have set a precedent endangering U.S. competitiveness as well as civil liberties throughout the world.

The case began earlier this year after UBS – with the Swiss government’s full cooperation – turned over the names of 250 customers suspected of violating U.S. tax laws. But the U.S. government then turned around and asked for a whopping 52,000 additional names. The Swiss government naturally objected to such a fishing expedition as a violation of the nation’s privacy laws.

Switzerland rightly argued that such a large volume of names could not be justified by probable cause or “reasonable suspicion,” a requirement of the tax treaty Switzerland had negotiated with the U.S. In addition, such a fishing expedition would have gone against the spirit of the Fourth Amendment of the U.S. Constitution, which protects Americans from “unreasonable searches.” A forensic analysis commissioned by UBS from Alix Partners found that many international students, diplomats, and Americans who work in Switzerland – and banked in Switzerland by necessity – could have been swept up in this dragnet.

It’s far from clear that if the shoe were on the other foot, and a foreign country were to demand the names of 52,000 customers of an American bank, the U.S. would have complied. The United States Model Income Tax Convention of 2006, used as a template by the U.S. to negotiate tax treaties, states that no country should be required to honor “a request in which a Contracting State simply asked for information regarding all bank accounts maintained by residents of that Contracting State in the other Contracting State, or even all accounts maintained by its residents with respect to a particular bank.”

The Swiss government maintains that the surrendering of these names, in contrast to the Obama administration’s previous demand, does not violate Swiss privacy laws because there was “reasonable suspicion” of tax breaches covered under the U.S.-Swiss treaty. Regardless, American civil liberties advocates on either side of the political fence should be alarmed by the U.S. government’s sweeping disregard of privacy interests in its original demands to the Swiss government, and should encourage their home country to never treat privacy and another country’s sovereignty so cavalierly again.