By Kevin Stocklin
When you open a bank account, do you surrender all rights to your privacy and personal data?
Today, the answer is yes. The Bank Secrecy Act of 1970 (BSA) and subsequent amendments mandated that your bank must inform the federal government about any customer’s transactions that they consider suspicious, however broadly defined that may be, in the form of Suspicious Activity Reports (SARs).
How often do banks think their customers are doing something suspicious? According to the U.S. Treasury Financial Crimes Enforcement Network, there were approximately 20 million bank reports of suspicious activity in 2019.
An August report by the Cato Institute titled “Government Surveillance Doesn’t Stop at Your Bank’s Door” states that this reporting requirement doesn’t just apply to banks but also to currency exchanges, payments companies, broker-dealers, casinos, pawnbrokers, travel agencies, and car dealerships.
All of this would seem to be illegal under the U.S. Constitution; the Fourth Amendment, for example, prohibits “unreasonable search and seizure” by our government and establishes the requirement for the government to obtain a warrant and show “probable cause” of a crime. But according to Jennifer Schulp, co-author of the Cato report, one reason that government surveillance-by-proxy has been allowed by U.S. courts, including the U.S. Supreme Court, is something called the “Third Party Doctrine.”
Schulp told The Epoch Times that the Third Party Doctrine is a legal principle that “essentially removed the expectation of privacy that an individual has from information that they share with a third party, including their banks. So under current Fourth Amendment jurisprudence, the information that you give to your bank is no longer private.”
Given that it is nearly impossible to function without a bank account in America today, this effectively blurs the line between public and private surveillance. When the Third Party Doctrine was adopted in the 1960s and 1970s, the courts began to allow government to conduct warrantless searches in the interest of preventing crime.
The Cato report points out that “while the government’s interest in stopping crime is certainly an important one, the Constitution’s Fourth Amendment already balances that interest with an individual’s interest in privacy by requiring the government to obtain a warrant to access a person’s documents and information.”
Another reason the Supreme Court allowed the Bank Secrecy Act to stand was that the law as originally written was more narrowly tailored, and only required reporting of transactions over $10,000. Taking inflation into account, this would be about $75,000 today. The limits of the BSA were never adjusted up for inflation, casting a much wider net today than when the law was passed.
How Extensive Is Government Surveillance?
Since being signed off on by the Supreme Court, the law has since been expanded to include many more types of transactions and institutions. But the fact that, according to the law, banks do not tell customers that they’re being surveilled, means that there are few challenges for courts to take up in order to reconsider their verdict.
“Banks are not allowed to let individuals know that this type of report is being filed on them,” Schulp said. “So to the extent that individual citizens might have objections to their information being shared with the government in a Suspicious Activity Report, they have no way of knowing that that’s happening to them, and thus can’t really bring the legal challenge themselves.”
Even at the time of the BSA’s original passage, some justices expressed concerns that the constitution was being violated. Justice Thurgood Marshall, for example, stated that “by compelling an otherwise unwilling bank to photocopy the checks of its customers, the government has as much of a hand in seizing those checks as if it had forced a private person to break into the customer’s home or office and photocopy the checks there.”
This issue is now being raised again today not only about bank surveillance but also about tech surveillance and even tech censorship. The question is: If the government is barred from warrantless searches, can it get around this simply by getting private corporations to search Americans’ data on its behalf? Likewise, if the government is barred from censoring Americans’ speech, can it just get private tech companies to do this instead?
The extent of bank surveillance has made headlines this year, in three cases in particular. The first was a New York Post report that Bank of America had data-mined its customers’ accounts to see which customers had made purchases or traveled to Washington, D.C., around the time of the Jan. 6 riots at the Capitol. The names of customers who had done so, or who had recently bought a firearm, were handed over to the FBI for investigation. One customer was reportedly questioned by the FBI as a result, but no charges were filed.
The second case regards a decision by credit card companies—Visa, Mastercard, and American Express, in particular—to begin tracking their customers’ purchases at gun shops. The CEO of Amalgamated Bank, a progressive bank that had lobbied heavily for the tracking of gun sales, stated that “where there may be gun sales that are intended for black markets or we see patterns of gun purchases made in multiple gun shops … we can provide that information to authorities to investigate.”
Gun rights advocates were quick to criticize this action.
“They’ve created this merchant category code that if you go into a gun store and you purchase anything from that gun store, and it looks like it may be something outside the norm, then that information could be turned over to the U.S. Treasury’s Financial Crimes Enforcement Network,” Mark Oliva, public affairs director for the National Shooting Sports Foundation, told The Epoch Times. “What we’re talking about with this is a heavy-handed approach that’s going to put people who are exercising their Second Amendment rights onto a government watchlist, simply for exercising that right.”
The third case occurred in February, when Canadian banks data-mined the private accounts of truckers protesting pandemic regulations, as well as those who had donated in support of protesters via crowdfunding sites like GoFundMe and GiveSendGo. Under orders from the Canadian government, banks froze the accounts of targeted customers, blocking them from accessing their own money or making credit card payments.
“That Third Party Doctrine has come under criticism a lot over the years, by current Supreme Court justices from very different schools of thought,” Schulp said. “Justice Neil Gorsuch and Justice Sonia Sotomayor have indicated that the Third Party Doctrine needs to be revisited. So I think it’s something that the current court might look at differently than the court did in the 1970s.”
Affiliate News Feeds
- Washington Examiner
- The Federalist
- The Epoch Times
- The Guardian
- The Gateway Pundit
- Judicial Watch
By Tom Ozimek Elon Musk suggested that Twitter was acting under government orders to suppress free speech, with his remarks coming hot on the heels of the release of a trove of… [...]
By The Associated Press PALMDALE , Calif.—America’s newest nuclear stealth bomber made its debut Friday after years of secret development and as part of the Pentagon’s answer to rising concerns over a future… [...]
Union workers are lashing out at both political parties and President Joe Biden for the rail legislation signed to prevent a strike, calling the provisions a "slap in the face"… [...]
A former professor at the University of California San Diego said she gave all of her students "A" grades and no homework in a recently unearthed video. [...]
Usually when a person defrauds investors of millions of dollars and launders the funds to personal pet projects, he goes to jail. (See: Bernie Madoff.) But in FTX founder Sam… [...]
Insider documents released on Friday confirm Twitter’s decision to suppress the New York Post’s legitimate reporting about Hunter Biden’s laptop mere weeks before the 2020 presidential election was a political… [...]
The State of Wyoming filed a second lawsuit against the Biden Administration, alleging that its suspension of oil lease sales were illegal. Gov. Mark Gordon (R-Wyom.) announced that his state… [...]
Actor James Woods said he plans to sue the Democratic National Committee (DNC) after Elon Musk shared explosive “Twitter Files” disclosures appearing to show that the DNC asked Twitter to… [...]
Policy could distract party from pushing through other urgent measures, leader is toldKeir Starmer has been warned by Labour peers that he risks getting bogged down in a “constitutional quagmire”… [...]
Dramatic U-turn following widespread unrest leaves country ill-prepared for OmicronThe portable PCR testing booth dangled in the air over a dark Beijing street, captured on camera as it was winched… [...]
Over the last few years, the U.S. Military has been politicized by the left. This is having the unfortunate effect of eroding the public’s trust in the institution. Just in… [...]
In Elon Musk’s most recent Twitter Space, Musk shared how he felt about Ye’s recent Twitter ban. The usually calm and collected Musk let out a rare burst of raw… [...]
From Fox News: The Secret Service will not say why they changed their position regarding a government watchdog’s records request into Hunter Biden’s gun investigation records. Government watchdog Judicial Watch… [...]