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> The government needs a warrant after convincing a judge that there is probable cause that you have committed a crime before they can pull your bank records.
by schoen 6y ago
> The government needs a warrant after convincing a judge that there is probable cause that you have committed a crime before they can pull your bank records.
Unfortunately, transaction records like financial records are currently afforded a very low level of legal protection in the U.S., so the "warrant" and "probable cause" parts don't describe current practice. (That would be the case for a telephone wiretap, or a search of your home, but not for access to your financial records.)
https://en.wikipedia.org/wiki/Third-party_doctrine https://en.wikipedia.org/wiki/Third-party_doctrine
One thing that I don't think the press ever managed to chase down -- following the Snowden revelations -- is the rumor that there was also a "bulk financial records program" which would have involved intelligence agencies and/or law enforcement getting access to search all bank transactions, without any individualized suspicion. (Recall that one thing Snowden revealed is that there was a bulk telephone records program, in which telephone metadata was turned over to the government in bulk, without individualized suspicion, which the government justified in part due to the third-party doctrine.)
In the government's view, the third-party doctrine means that it's never a fourth amendment violation if the government compels access to most kinds of transaction data in the possession of some kind of service provider or intermediary. (Some of those kinds of data may have higher levels of statutory protection but the government's position, as I understand it, has been that it's not an infringement of your fourth amendment rights even if those protections are circumvented or ignored.)
- hannasanarion 6y agoThe Third Party Doctrine does not apply to Bank Records since the Right to Financial Privacy Act was enacted in 1978. Cops need a warrant to pull your bank records.
- schoen 6y agoThanks, I didn't know about that and I'll have to look at that some more. (Technically the third party doctrine would still apply in any case, because this would be a statutory protection rather than a constitutional protection.)
- hannasanarion 6y agoYeah, most times the Third Party Doctrine comes up these days afaik is with location tracking services. EG, technically cops don't need a warrant or subpoena to ask Google where you were on a particular day. Though, in practice, they often still get one because they know that it's kinda unfair and judicial or statutory protections are probably coming soon and they don't want to jeopardize the prosecution should the law change during the investigation. For example, the January 6 insurrectionists are largely being caught through location data obtained under warrant from Google. Do they technically need the warrant? No. And if they were investigating, like, shoplifters, they probably wouldn't have bothered to get one. But they don't want to let thousands of insurrectionists off the hook in case this is the case where the courts decide to flip.