The US is on the brink of enacting rules for digital assets, with growing bipartisan momentum to modernize our financial system. But amid all the talk about innovation and global competitiveness, one issue has been glaringly absent: financial privacy. As we build the digital infrastructure of the 21st century, we need to talk about not just what’s possible but what’s acceptable. That means confronting the expanding surveillance powers quietly embedded in our financial system, which today can track nearly every transaction without a warrant.
Many Americans may associate financial surveillance with authoritarian regimes. Yet because of a Nixon-era law called the Bank Secrecy Act (BSA) and the digitization of finance over the past half-century, financial privacy is under increasingly serious threat here at home. Most Americans don’t realize they live under an expansive surveillance regime that likely violates their constitutional rights. Every purchase, deposit, and transaction, from the smallest Venmo payment for a coffee to a large hospital bill, creates a data point in a system that watches you—even if you’ve done nothing wrong.
As a former federal prosecutor, I care deeply about giving law enforcement the tools it needs to keep us safe. But the status quo doesn’t make us safer. It creates a false sense of security while quietly and permanently eroding the constitutional rights of millions of Americans.
When Congress enacted the BSA in 1970, cash was king and organized crime was the target. The law created a scheme whereby, ever since, banks have been required to keep certain records on their customers and turn them over to law enforcement upon request. Unlike a search warrant, which must be issued by a judge or magistrate upon a showing of probable cause that a crime was committed and that specific evidence of that crime exists in the place to be searched, this power is exercised with no checks or balances. A prosecutor can “cut a subpoena”—demanding all your bank records for the past 10 years—with no judicial oversight or limitation on scope, and at no cost to the government. The burden falls entirely on the bank. In contrast, a proper search warrant must be narrowly tailored, with probable cause and judicial authorization.
In United States v. Miller (1976), the Supreme Court upheld the BSA, reasoning that citizens have no “legitimate expectation of privacy” about information shared with third parties, like banks. Thus began the third-party doctrine, enabling law enforcement to access financial records without a warrant. The BSA has been amended several times over the years (most notoriously in 2001 as a part of the Patriot Act), imposing an ever-growing list of recordkeeping obligations on an ever-growing list of financial institutions. Today, it is virtually inescapable for everyday Americans.
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