Asset Protection BLOG - Mark Nestmann

Don't Go to Jail to Protect Your Assets

Asset protection isn't a game.  It's not something to do casually, either.  Do it right, or you risk losing your assets…or occasionally, being imprisoned for your efforts.

And so from stage right enters our newest "don't do this" asset protection poster child: one Mary Morris of Palm Beach, Florida.  Now housed in the Palm Beach County Jail, Mary could remain there indefinitely unless she pays her ex-husband US$1.8 million.

The convoluted tale began when Mary and her husband divorced in 2001.  Fearing his wife would flee with their two children, Mary's then-husband Leland Morris offered Mary a "bonus" if she would allow him to be their primary custodian.  The bonus amounted to a whopping US$1.5 million on top of the already generous divorce settlement.

Leland feared his wife would violate the agreement.  So along with the bonus, there was a stinger: if Mary contested the agreement, she had to repay the bonus.

Two years later, in 2003, Mary did exactly that.  She asked a Florida court to modify the agreement to better fit her, well, Palm Beach lifestyle. 

Big mistake.  Rather than modify the agreement, Circuit Judge Jeffrey Colbath ruled that her complaint constituted a challenge of the agreement.  He ordered her to repay the US$1.5 million plus US$300,000 of Leland's attorneys' fees; US$1.8 million in all.

To collect the judgment, Leland filed a lawsuit to force her to sell her home to pay part of the money.  (Apparently, she hadn't owned it long enough to have the generous Florida homestead exemption statutes apply.)  Mary promptly took out a US$450,000 home equity loan against the house.

Such conduct may constitute a "fraudulent conveyance;" an effort by a debtor to "hinder, delay, or defraud" a creditor.  And Judge Colbath didn't like it one bit.  He ordered Mary to return the money, and issued a criminal contempt citation when she refused.  After she missed a court date to explain herself, he issued a warrant for Mary's arrest.

Mary then disappeared for a few years.  She resurfaced in January, turning herself in at the Palm Beach County Jail.  And there she remains to this day.

End of story?  No, this is where it really gets interesting.  You see, before violating the divorce agreement, Mary formed an offshore trust in the Cook Islands.  She claims all her money is in the trust, and she has no way to repay any of her debts.  Yet, while she was on the run, she lived abroad on distributions from the trust.

Now, the Cook Islands trustee refuses to make further distributions to satisfy the judge's order.  Naturally, this doesn't make Judge Colbath very happy. 

As a result, Mary may have an extended stay in the Palm Beach County Jail, although negotiations are underway between the respective attorneys to resolve the situation so she can be released.

The real problem is Mary's penchant for thumbing her nose at court orders.  You can't do that and expect to have your asset protection plan keep you out of jail.

What could Mary have done differently to avoid her present circumstances?

• She should have retained sufficient assets in the United States to satisfy any debts she reasonable expected to incur. 
• She should have shown up for her court dates.
• She should have not contested the divorce decree.
• She should have followed professional legal advice in setting up and funding the trust.

Did the fact that Mary accepted distributions from the trust while living abroad weaken her case?  Yes, definitely, but it's quite possible that this fact alone wouldn’t have landed her in jail had she taken the other precautions I've mentioned.

Asset protection is a serious business.  Take it seriously, or you risk your assets—or your freedom.

Copyright © 2008 by Mark Nestmann

Did the USA Outsource Passports to Terrorists?

It's almost unbelievable, but it's true.  The U.S. government outsources key aspects of the production of its supposedly ultra-secure electronic passports, to numerous foreign countries.  Key aspects of the technology used to protect the security of e-passports have been stolen. Osama bin Laden and his terrorist friends may have access it, along with Chinese intelligence agencies.

Under U.S. law, the Government Printing Office (GPO) is the U.S. government's official printer.  That includes the printing of passports.  Unfortunately, the GPO outsourced passport production, in several cases choosing foreign companies to produce newly developed, supposedly state-of-the-art, electronic U.S. passports.

An internal audit by the GPO last October revealed that the agency uses companies in the Netherlands and Thailand for critical parts of passport production. 

First, it ships blank passports the Dutch company (often using unsecured FedEx shipments for this purpose).  The Dutch company inserts a radio frequency identification (RFID) chip in the passport cover.

Once that's done, the Dutch company ships the blank passports to Thailand.  There, passports are fitted with a wire antenna that transmits data to electronic scanners at U.S. border entry points.  The Thai company ships the assembled blank passports back to the United States.

These procedures--particularly the use of unsecured FedEx shipments--make the blank passports vulnerable to theft or counterfeiting.  And, it turns out, that may have already occurred. 

The Dutch company that produces the RFID chips alleged in a lawsuit last October that China had stolen its patented technology for e-passport chips.   It's possible that Chinese intelligence agencies—and anyone else to whom China provides the technology—will use it to produce state-of-the-art counterfeit passports. 

Involving Thailand in the production process raises its own security concerns.  In recent years, anti-government groups in Thailand, backed by Islamic fundamentalists, have carried out attacks in southern Thailand.  It's hardly implausible that one or more terrorists found employment at the Thai company.  Al Qaeda and its ilk may now now also have access to the America's supposedly secure e-passport technology.

What a mess!  If you headed up a foreign intelligence service or international terrorist group, wouldn't you like to send your operatives around the world masquerading as U.S. citizens?  Thanks to this outsourcing scandal, that's precisely the threat that American may now face.

Copyright © 2008 by Mark Nestmann

Swimming with the Sharks

How do you know whether the offshore provider you're dealing with is honest?  What assurance do you have that he simply won't take your money and run?

The only way you can find out the answer is to conduct a little "due diligence."  And that's what the upcoming 6th Annual Offshore Alert Financial Due Diligence Conference is all about. 

Hosted by Offshore Alert publisher David Marchant, this conference will take place on April 13-15, 2008 at the Fort Lauderdale Grande Hotel & Yacht Club in Fort Lauderdale, Florida, USA.  With the theme "The Unexpurgated Offshore," the conference for the first time will focus on offshore financial centers.

My friend and colleague Burke Files, founder and president of Financial Examinations & Evaluations, Inc., will be one of the featured speakers.  If you attend this conference, be sure to have a word with him.  In his 20-plus years dealing in the offshore world, he has some amazing stories.

General sessions include a keynote debate between pro-offshore and anti-offshore parties about the role OFCs play in the global economy, while another debate will ponder the statement: "My Way or the Highway: The United States is Regulating Itself into Economic Decline."

Other general sessions will inform attendees "How to Utilize Offshore Financial Centers WITHOUT Breaking the Law" and go into "Steps OFCs Must Take to Thrive in the Modern Era."

To learn more about this conference, please click here.

Copyright © 2008 by Mark Nestmann

Get Ready for Higher Taxes in 2009

It's a truism to observe that politicians will promise just about anything to get elected.  And you don't have to be a genius to know that these promises are made to be broken.

And so it is with the leading presidential contenders when it comes to tax policy. 

On the Democratic side, both Barack Obama and Hillary Clinton propose significant changes to the U.S. Tax Code.  Barack's plan is to further shift the tax burden toward the rich from low- and middle-income workers.  It's not enough that the wealthiest 1% of Americans already pay more than 35% of all federal income taxes. 

Hillary's plan emphasizes using tax policy for social engineering purposes.  She wants to change the tax system to change the way Americans use energy, save money and care for elders.

Both Barack and Hillary want to end the 2001 Bush tax cuts, at least for upper-income Americans.  Hillary sets that threshold at US$250,000 or higher annual earnings.  Barack is less specific, but his plan roughly corresponds to Hillary's.  The biggest difference is that Barack's threshold for "upper-income" starts at US$75,000 in annual earnings.

Both Democratic candidates also want to greatly increase spending on their pet social programs.  Hillary, for instance, says: "My health care program will cover everyone.  I don't leave anybody out.  It is a universal system." 

That won't be cheap.

On the Republican side, the nomination of John McCain seems all but certain.  John says he wants to make the Bush tax cuts permanent (although he originally voted against them).  He also advocates cutting corporate taxes and getting rid of the alternative minimum tax.  Finally, John promises to "restrain spending" and eliminate the "pork barrel."

From my own perspective, any tax cut is good.  But none of the candidates talk seriously about cutting spending as well.  Even John, with his talk of eliminating the "pork barrel," voted against an across-the-board tax cut in 1999.  Plus, he's said he's prepared to keep U.S. troops in Iraq—or anywhere else U.S. interests dictate—for 100 years.  At US125 billion annually just for the war in Iraq, and rising, that won't be cheap, either. 

When U.S. Treasury Obligations are "Junk"

I hate to be the bearer of bad news, but no matter whether Hillary, Barack or John is elected in November, taxes are going up, up, up.  Out-of-control entitlement programs, pork-barrel spending, and open-ended wars in Iraq and Afghanistan make that a foregone conclusion.

The total unfunded debt obligations for the federal government alone, including the present value of future Medicare and Social Security payments, is now nearly US$60 trillion.  That's more than five times America's total Gross Domestic Product. 

A ratio of 5-1 of unfunded debt obligations to GDP is more typical of third-world country than a supposedly creditworthy nation such as the United States.  And that fact hasn't gone unnoticed.  No less an authority than the Moody's credit rating agency warns that America's triple-A credit rating—first granted in 1917—is in jeopardy unless the country can successfully deal with this avalanche of unfunded mandates.  Without making some hard choices, America's sovereign debt may in a decade or two achieve "junk" status.

Of course, it's possible Congress and the next president will radically cut spending in 2009.  To make a significant dent in these unfunded obligations, it won't be enough to pull all of our troops out of Iraq and Afghanistan and end federal bailouts of ailing banks and brokerages.  Congress must also radically cut back on future spending promises for Social Security and (especially) Medicare.  It must also drastically cut military spending.  And you can forget about any new spending, such as a national health care program.

Think Congress or the next president, for that matter, will do that?  If you do, you're living in a dream world.  There's simply no political will to cut spending, in the mainstream of either major political party.

But what Congress can—and I think will—do shortly after the election is to significantly boost taxes, especially on upper-income Americans.  After all, "soaking the rich" is a time-honored American political tradition. 

If you're "rich" (which under Barack's definition means you make over US$75,000 annually), what plans should you make to deal with what I think are inevitably higher taxes?  Among other strategies, I recommend:

• Selling highly-appreciated investments now, and paying the 15% capital gains tax.  I believe capital gains taxes will rise sharply after the election.
• Avoid taking tax losses in 2008.  Any tax loss will be worth more as marginal tax rates rise.
• Invest funds you don't require for your immediate needs in tax-sheltered forms—retirement accounts, for instance.  The value of tax deferral will increase as tax rates rise. 

I'll be discussing these strategies, and many more, at The Sovereign Society's upcoming conference in Panama.  (Click here to learn more.)  Hope to see you there!

Copyright © 2008 by Mark Nestmann

P.S. I'll be speaking at the Casey Research Crisis & Opportunity Summit in Scottsdale, AZ March 25-27.  It would be great to meet any Sovereign Society members who are attending this event.    

Leave America, Pay an Exit Tax?

While Republicans and Democrats in the U.S. Congress disagree on almost everything else, there's virtual unanimity on one issue: the "need" to punish anyone who wants to permanently disconnect from the U.S. tax system. 

Citizens of every major nation, save the United States, can simply leave their own country for an extended period, and permanently end the requirement to pay income or capital gains taxes.  But U.S. citizens are subject to all U.S. federal taxes wherever they live, no longer how long ago they left the United States. 

Even "accidental" U.S. citizens--e.g., people born in the United States to non-U.S. parents, but never again lived in the United States--are subject to these rules.  Non-U.S. citizens who have lived in the United States for at least eight of the 15 years are also subject to these rules.

The only way out for U.S. citizens who wish to legally free themselves from the oppressive U.S. tax system is to acquire a passport from another country, and subsequently, give up their U.S. citizenship and passport.  Yes, it's a radical step…but it's the only way to accomplish what a citizen of almost any other country can accomplish simply by an extended period of non-residence.

And that's not all.  If you actually have the gumption to give up your U.S. citizenship—or long-term U.S. residence—the Tax Code has a zinger for you.  It applies if you have a net worth exceeding US$2 million or an average income tax liability exceeding US$136,000 for the five-year period before you expatriate.

Should you meet either of these tests, U.S. law imposes an "alternative tax regime" for a period of 10 years after expatriation.  Generally, expatriates covered by these regulations must pay income tax for the 10-year period at rates applicable to U.S. citizens.  However, because the rules apply mainly to U.S.-source income, it's relatively easy to avoid U.S. taxes for the 10 years after giving up U.S. citizenship. 

Congress now wants to change that with an outrageous law that would impose the first-ever exit tax on former U.S. citizens or long-term residents.  Last year, both houses of Congress approved legislation that would require expatriates who are subject to the alternative tax regime to additionally pay a tax on all unrealized gains of their worldwide estate that exceed US$600,000.  The tax would be due within 90 days of expatriation.

This bill also imposes a draconian 30% withholding tax on unrealized gains in an expatriate's IRA or other pension plan.  And don't think about gifting assets to family members or friends still living in the United States: a separate 30% tax applies to such gifts or bequests.

Don’t want to pay the tax?  If you fail to do so, or defer the tax by posting a bond with the U.S. Treasury, the bill would forever bar you from returning to the United States. 

I don't know when this legislation will be reintroduced, but support is virtually unanimous for it on both sides of the aisle.  It's not a question of whether the exit tax will become law—only when.  My sources in Washington, D.C. tell me that sometime before the 2008 election, it's a near-certainty that the exit tax will become law. 

I'll be tracking the progress of this deplorable proposal once it's reintroduced this year.  I've also prepared a special report on expatriation and the implications an exit tax will have on Americans considering expatriation.  To learn more about this report, click here.

Copyright © 2008 by Mark Nestmann

Want E-Mail Privacy? Use a non-U.S. E-Mail Service Provider

Like so many other things, especially investing, your e-mail communications are more private if you conduct them offshore.  That's because U.S. law enforcement and intelligence agencies essentially have "carte blanche" to U.S. e-mail providers.   In certain cases, so do ordinary civil litigants. 

Several factors, both legal and technological, facilitate surveillance of U.S.-based e-mail accounts. Since 1986, the government has been able to obtain basic subscriber information for telephone, e-mail, Web browsing, or other electronic services, including name, address, and toll records, simply by issuing a subpoena.

The USA PATRIOT Act significantly expands this authority.  Police can now obtain "records of session times and durations," as well as records of "any temporarily assigned network address."  This data makes it faster and easier to identify you and trace your Internet communications. 

Another glaring exception applies to e-mail or voice messages stored on an Internet service provider's or telephone company's computers.  To read your stored e-mails on Yahoo, G-Mail, etc., or listen to your stored voice messages, police need only demonstrate that the information sought is relevant to an investigation.  They don't have to establish that there's probable cause of any crime. 

This exception may also apply in civil cases.  In 2007, a U.S. district court ruled that in a copyright dispute, the party alleging infringement may conduct ongoing surveillance of another party's stored e-mail messages. 

But in the War on Terror, even these rudimentary legal protections have folded.  At least one major ISP has installed a direct conduit from its servers to the largest U.S. intelligence agency—the National Security Agency.  This means the government can read your e-mails and monitor your Web browsing habits in real time, without any legal authorization whatsoever. 

Perhaps you think you have "nothing to hide."  If so, you have the choice of doing nothing.  But if you'd prefer to keep your e-mail records private, your best bet is to use a non-U.S. provider that's not subject to the USA PATRIOT Act.

One that I've long recommended is Hushmail (http://www.hushmail.com).  This service isn't perfect—it has on numerous occasions released information to U.S. investigators—but since it's based in Canada, it's not subject to the USA PATRIOT Act. 

If the U.S. government—or anyone else—wants your e-mail records, it must obtain a court order to obtain them.  Then it must try to enforce that court order in Canada.  This is possible under the U.S.-Canada Mutual Legal Assistance Treaty, but approval is not automatic.  What's more, there is judicial oversight each step of the way.  "Fishing expeditions" into your e-mail records simply aren't permitted.

Click here to learn 118 ways to protect your privacy—both off and on the Internet.

Copyright © 2008 by Mark Nestmann

It's Enough to Make You Quake in Your Boots

Suppose you own a commercial property.  It's an old building; one that's susceptible to damage by earthquakes.  But under applicable law, you have until 2018 to renovate the building for seismic safety. 

Quiz time: if there's an earthquake that damages your building, can you be found negligent (and therefore financially responsible) for any deaths or injuries your tenants suffer?  If the building is in California, the answer is "yes."

Last month, the Mastagni family found this out the hard way in a San Luis Obispo, California courtroom.  A civil jury awarded US$2 million to the families of two women killed in the collapse of a building they owned in the 2003 San Simeon Earthquake.   

Think you can count on liability insurance to pay this type of claim?  Think again.  General liability insurance policies don't provide earthquake coverage.  And earthquake coverage generally covers only physical damage to a structure—not negligence.

What this means is that if you own commercial property in California, the 2018 deadline for retrofitting it in accordance with current earthquake resistance standard is meaningless.  You must retrofit it before the next earthquake hits, whenever that may be.  If you don't, and an occupant of the building is injured killed, you're liable.  And it's highly unlikely you can purchase insurance coverage to mitigate the risk.   

You say it's too expensive to retrofit the building?  That was the Mastagni's response when they received a proposal to shore up their 111-year-old masonry building leveled in the 2003 quake. 

Well, tough luck.  It doesn't matter what the cost is.  If you don't want to pay for the retrofit, sell the building.  Or rent wrecking crane and level it.  (Naturally, if the building is "historic," this is probably illegal.) 

Let's hope that the Mastagnis had a well-crafted asset protection plan in place years before their building collapsed.  They're going to need it.

Copyright © 2008 by Mark Nestmann

Kellogg Brown & Root Saves Taxes Offshore…and so Can You

Tax havens are once again in the news.

Revelations have surfaced that the nation's largest Iraq war contractor "evaded" hundreds of millions of dollars in federal Medicare and Social Security taxes.  The company in question, Kellogg Brown & Root (KB&R), avoided these taxes by hiring workers through companies based in the Cayman Islands.

That's led career politicians like former presidential candidate Sen. John Kerry (D-Mass.) to attack the practice.  Kerry accuses KB&R and other U.S. companies operating overseas businesses through offshore subsidiaries of "corporate greed."  Kerry (along with presidential candidate Barrack Obama) has introduced legislation to close this "loophole."

Excuse me, Senator.  This is no loophole.  Virtually every other country in the world has the same policy. They quite properly and logically exempt businesses operating outside their borders, using employees working outside their borders, from withholding taxes on the income of their employees. 

It escapes me why it outrages anyone that a company doing business outside the United States can legally avoid paying U.S. tax.  What's wrong with KB&R organizing its affairs in such a way as to avoid paying U.S. taxes on its non-U.S. operations?  If there's greed involved, it's in the minds of career politicians like Sen. Kerry.

Under current U.S. law, even a one-person company can pull off the same strategy as KK&R.  All you need to do is live and work outside the United States, form an offshore company, and pay yourself a salary from that country.

Here's how it works. Companies that are chartered by any U.S. state must generally withhold federal Medicare and Social Security taxes on their employees, anywhere in the world.  The exceptions exist by virtue of "totalization agreements" the United States has signed with about 20 countries—you can read about them here.

But if a U.S. taxpayer forms a non-U.S. company and pay wages to employees outside the United States, there's no obligation to withhold any U.S. tax to the employees.  That's true even if the employees are U.S. citizens. 

This only makes sense, because the foreign company will usually be required to withhold tax payments in the foreign countries in which it's operating.  It's only fair that the U.S. Treasury maintains a hands-off attitude.

An added bonus: under the "foreign earned income exclusion," the first US$85,700 in wages you pay yourself are legally exempt from U.S. income tax.  If you're married, and your spouse accompanies you offshore, both of you enjoy this exclusion.  That\s a total of US$171,400/year in wages, completely free of all U.S. tax obligations.

My book The Lifeboat Strategy covers this completely legal tax avoidance tactic in depth.  Click here to learn more about it.

Copyright © 2008 by Mark Nestmann

Even Elliot Spitzer's No Match for the "Bank Secrecy Act"

Talk about comeuppance.  New York governor Elliot Spitzer, the poster boy for ethics on Wall Street and elsewhere in the financial markets now finds his political career in ruins.  And it's all because of an almost-unknown law: the Bank Secrecy Act.

The so-called "Sheriff of Wall Street" made the mistake of withdrawing large amounts of cash from his bank account and trying to prevent the bank from reporting the withdrawal to the U.S. Treasury.  That apparently set alarm bells off in the bank's software used to identify "suspicious transactions" in customer accounts. 

The bank turned the information over to the IRS.  An investigation began, which included wiretaps of Elliot's phone calls, including a series of conversations setting up liaisons with high-priced call girls. 

And a few weeks later, The New York Times revealed that Spitzer had paid a prostitute US$4,300 in cash for her services.  Apparently, Spitzer had at least seven liaisons with women from the agency over six months, and paid more than US$15,000.

In cash.  And that's what led to the problem.  The Bank Secrecy Act requires that banks report the withdrawal of more than US$10,000 to the U.S. Treasury.  The form used is called a "Currency Transaction Report" or CTR.

Elliot apparently realized that any cash withdrawal over US$10,000 led to a CTR filing requirements.  But, he may not have realized is that any effort to avoid this filing requirement by breaking up a series of related cash transactions into smaller amounts is a federal crime called "structuring." 

If Elliot is prosecuted for structuring, he could face a five-year prison sentence and a US$250,000 fine.  He could also lose every dime in the account from which he structured the funds, under the law's severe civil forfeiture sanctions.  But most likely, he'll receive a fine for the offense, but no prison time. 

In most structuring investigations, the problem is knowing what transactions are "related."  Are a series of 12 withdrawals of US$900 (which collectively exceed US$10,000) related?  Bank Secrecy Act regulations don't address this possibility, or any of an infinite number of other possibilities.  But in Elliot's case, it was clear that the withdrawals had a common purpose: to funnel money to a front company for the prostitution agency.

Elliot's sad story should be an object lesson.  Laws that prohibit you from withdrawing your lawfully earned money in any way you please from your bank account without notifying the U.S. Treasury may be unfair.  But, they are enforced, as Elliot learned to his dismay.

Copyright © 2008 by Mark Nestmann

Uncle Sam Doesn't Want Anyone to Visit Cuba

One of the best-kept secrets in America's arsenal of financial sanctions is the U.S. Treasury Department's Terrorist Watch List.  It's maintained by the Treasury's Office of Foreign Assets Control (OFAC) to enforce economic and trade sanctions against more than a dozen countries.  (I wrote about this list here.)

One of those countries is Cuba. Under a series of executive orders and laws enacted by Congress, it's illegal for a U.S. citizen to travel to Cuba, without a "license" issued by OFAC.  It's also illegal for a U.S. company to do business with Cuba without a license, except in narrowly defined circumstance. 

However, these laws and regulations have no legal effect in other countries.  If someone, say, in Spain, wants to travel to Cuba, there's no violation of U.S. law, since the United States has no jurisdiction over Spain.

Only, it does, according to OFAC.  In October, OFAC shut down 80 Web sites owned by a British travel agent named Steve Marshall who sells vacations to Europeans.  One of the places to which Marshall offers vacations is Cuba. 

This was justified, according to OFAC, because Marshall's company "had helped Americans evade restrictions on travel to Cuba" and was "a generator of resources that the Cuban regime uses to oppress its people."

Marshall says he didn't market Cuban vacations to Americans, "because they can't travel there, anyway."  But his real mistake was using a U.S.-based domain name registrar for his Web sites.  This gave OFAC the ability to contact the registrar, eNom, and order the company to pull the plug on Marshall's Web sites.  Given the fact that failure to comply with OFAC regulations can be punished with a 30-year prison sentence, a US$5 million criminal fine, or a civil penalty of up to US$1 million, eNom quickly complied.

Fortunately, Marshall was able to re-register his Web sites with a European registrar, although he had to rename most of them with the suffix ".net" rather than ".com." 

But there's a larger issue at stake.  OFAC shut down Marshall's business without warning, without a hearing, resulting in hundreds of thousands of dollars of lost revenues.  Not exactly the "American way" we read about in civics textbooks.

However, it could have been worse.  If Marshall had established a U.S. bank account, or maintained any other asset in the United States, the U.S. bank or custodian would have been obliged to freeze it—and turn the proceeds over to OFAC. 

Are you on the OFAC terrorist watchlist?  You can find out for yourself by visiting OFAC's list of "specially designated nationals" here.

If you're on the list, though, don't count on getting off anytime soon.  That's because the only way to get off is to ask OFAC to remove you from the list.  This is an administrative determination—you have no right to a court hearing to determine if you should have been put there in the first place.

In other words, the same bureaucrat who put you on the watch list in the first place may be the one who you ask to take you off of it.  Good luck…

(For more information on emergency financial controls administered by OFAC and other government agencies, click here.)

Copyright © 2008 by Mark Nestmann

It's Open Season for the Government to Snoop on Your Postal Correspondence

Historically, postal mail—especially letters sent "first class"—has enjoyed greater legal protection under U.S. law than other types of correspondence.  But, thanks to the "War on Terror," that protection has greatly eroded in recent years.

A record of your written communications provides a highly revealing portrait.  Many biographies have been written based on the subject's correspondence.  What you write, and whom you correspond with, can be equally revealing.

A postal mail cover provides police and investigative agencies a record of all data appearing on the outside of any correspondence you receive or send.  This includes the addressee, sender, return address, place and date of postmark. 

Since the Postal Service doesn't open your mail in a mail cover, it doesn't consider this practice a "search."  That means no warrant is required.  As a result, there's no judicial supervision of mail covers.  All that's required is the administrative approval of the Postal Inspection Service.

At the same time, though, the Postal Service is reluctant to say much about mail covers.  You're not supposed to know.  Indeed, when journalists requested data in 2006 on mail-cover trends and statistics, the Postal Service rejected their request, citing "the interest of national defense or foreign policy." 

However, the Postal Service, in response to a request under the Freedom of Information Act, recently released limited data on mail covers.  And the information is alarming.  Each year, the Postal Inspection Service approves more than 10,000 mail covers.  Nor is it applying a particularly rigorous standard of review.  From 2004-2006, it approved more than 99.5% of mail cover applications. 

It gets worse.  The U.S. Supreme Court has ruled that authorities can't open first-class mail unless a judge issues a search warrant.  But, again,  an increasing number of exceptions apply.  For instance, officials can open first-class mail if they suspect that it contains drugs or other contraband.  Since 2002, the Customs Service has been empowered to conduct warrantless searches of first-class mail sent across a U.S. border. 

Worst of all, in 2006, President Bush quietly asserted a new government prerogative to open domestic mail without a warrant, probable cause, or even suspicion that it contains dangerous materials or contraband.  The only requirement is that the mail opening be related to "foreign intelligence collection."

Despite these drawbacks, first-class mail remains the best way to protect the privacy of your physical (as opposed to electronic) correspondence.  This is particularly true in comparison with private courier services.  All private courier services reserve the right to inspect the contents of packages and routinely cooperate with law enforcement in this regard.  In addition, the courts have consistently said that private messengers may open packages prior to delivery.

Learn hundreds more ways to protect your privacy and wealth—click here for more information.

Copyright © 2008 by Mark Nestmann

A EU Passport Through the Back Door

The Netherlands Antilles—a group of five islands in the eastern Caribbean—is one of the best-kept secrets in the world of alternative residence and second passports.

These tropical islands, which form an autonomous part of the Kingdom of the Netherlands, aren't well known in the United States.  But if you qualify for and maintain legal residence on one of these islands, there's a big payoff after five years: you're eligible to apply for citizenship and a passport from the Netherlands, a member of the European Union. 

With a Dutch passport, you have visa-free access to more than 120 countries including Canada, Mexico, and the USA.  You can live or work anywhere in the EU.  And unless you choose to live in the Netherlands, you won't be subject to Dutch taxes.  For U.S. citizens or long-term residence considering expatriation, a Dutch passport provides a first-class alternative travel document that can be used virtually anywhere in the world.

The Netherlands Antilles consists of two groups of islands:

• Curaçao and Bonaire, off the Venezuelan coast, and
• St Eustatius,  Saba and St. Maarten, located southeast of the Virgin Islands.

Aruba, also off the Venezuelan coast, while still part of the Kingdom of the Netherlands, is no longer part of the Netherlands Antilles.  And indeed, the Netherlands Antilles confederation is slated to dissolve as a unified political entity on December 15, 2008.  At that time, the five islands are scheduled to attain new constitutional status within the Kingdom of the Netherlands.  This is a positive development, as it will eliminate what has been seen as an increasingly redundant and unnecessary layer of bureaucracy between the Netherlands and each constituent island.

Each one of these islands has its own character: from bustling St. Maarten to sleepy Saba.  On some of the islands, Dutch is widely spoken; on others, English as well as a regional language called Papiamento are more commonly heard. 

To qualify for residence in the Netherlands Antilles, you must demonstrate that you're in good health, of good moral character, and provide evidence of financial self-sufficiency.  Since the permitting process is arduous (for starters, most forms are in Dutch ), it's extremely helpful to have the assistance of an intermediary. 

Representatives of The Nestmann Group have experience obtaining these types of permits, so we can assist with this process.  We can also provide guidance as to choosing the most appropriate island for residence, depending on your unique requirements. 

For more information on obtaining residence in the Netherlands Antilles, contact The Nestmann Group, Ltd. at info@nestmann.com. 

Copyright © 2008 by Mark Nestmann

Practice these "Good Housekeeping" Habits to Protect Your Encrypted Data

In my most recent blog entry, I described a fundamental vulnerability in several popular disk encryption technologies. 

This vulnerability, which researchers have dubbed the "Cold Boot Attack," can leave your encrypted data vulnerable to attack and exposure.  Any information remaining in your PC's memory—including your encryption keys and passphrases—may be recovered.

Fortunately, you can take several precautions to avoid having your data compromised.  They're suggested by PGP, the company that produces PGP Whole Disk Encryption, my top-rated encryption product:

• When possible, place computers in hibernation instead of sleep mode.  Hibernation mode (at least in the case of PGP) removes encryption keys from computer memory.
• Shut your PC down a few minutes before you leave your office or present it for physical inspection (e.g., at a U.S. border crossing).  This gives the memory chips in your PC time to cool off and the contents of the memory to dissipate, lessening your susceptibility to this type of attack.
• If you use PGP Whole Disk Encryption, use PGP Virtual Disk (a part of the program) to prevent this attack.  Keep your confidential files in a virtual disk.  When you unmount your virtual disk, your data is secure from the Cold Boot Attack.  Configure PGP Desktop to unmount virtual disks if the computer goes into sleep mode.
• Finally, never "cache" your encryption keys.  PGP and other popular encryption programs permit you to store your encryption keys in your PC's memory so that you don't have to type the passphrase each time you open an encrypted file. 

I should emphasize that this is a hardware issue—it has nothing to do with the strength or weakness of encryption programs.  But by practicing these encryption "good housekeeping" practices, you can insure your encrypted data remains secure.

Copyright © 2008 by Mark Nestmann