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The announcement that the Biden Administration proposed a $600 (now $10,000 ) threshold for bank account surveillance has left many people on social media wondering how such a proposal could be considered constitutional under the Fourth Amendment . They aren’t the first to ask. The question of financial privacy was taken all the way to the Supreme Court in 1976. And it was in United States v. Miller that the Court reasoned a person cannot voluntarily provide information to a financial institution and expect that information to be protected by the Fourth Amendment. Yet, maybe it’s time to reconsider that decision. The Proposal
The administration’s original IRS reporting proposal would require banks (and non-banks such as Venmo and Coinbase) to report on accounts in which $600 or more is moved over the course of a year. That includes deposits, withdrawals, and transfers. However, after widespread criticisms , Senate Finance Committee Chairman Ron Wyden (D-OR) announced that the reporting threshold would be raised from $600 to $10,000––a change that would require reporting on fewer accounts.
Yet, even in the proposal’s new form, the question remains: How can such surveillance be considered constitutional under the Fourth Amendment in the United States? The Fourth Amendment and the Third-Party Doctrine
The Fourth Amendment protects American citizens from “unreasonable searches and seizures.” As written, the Fourth Amendment states, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Although the Founding Fathers may not have anticipated the advancement of technology (and the mass-surveillance that has followed it), the Supreme Court has been clear: The Fourth Amendment applies to much more than just “physical” searches. In 2001, the Court recognized in Kyllo v. United States that technology used to surveil the inside of a home from afar (e.g., thermal imaging) was in fact a violation of the Fourth Amendment.
However, the Courts decision […]
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