Did you know that banks are required to report any personal cash transactions of over $10,000 to FinCEN, the Financial Crimes Enforcement Network? More than 15 million “suspicious activity reports” are filed by banks each year, according to Reuters. The suspicious activity being reported also includes “suspected incidents of money laundering, loan fraud, computer hacking or counterfeiting”. The data is then stored in a massive database which the FBI can dig through at will. Now, the Obama administration wants to give all U.S. spy agencies including the CIA, and NSA the same ability to peruse the illegally stored data. It is being stored illegally, because it was collected without a warrant with banks facing possible criminal discipline if they refuse to comply with the reporting requirements. The Fourth Amendment enshrines Americans’ rights to be secure in their persons, houses, papers, and effects against unreasonable search and seizure.
If spy agencies have the right to dig through Americans’ financial information, without a warrant, before anyone has been indicted with a crime, this clearly violates the Constitutional rights of those citizens. Furthermore, banks massively over report suspicious activity for fear of breaking federal law reporting requirements.
The requirements for filing are so strict that banks often over-report, so they cannot be accused of failing to disclose activity that later proves questionable. This over-reporting raises the possibility that the financial details of ordinary citizens could wind up in the hands of spy agencies.
As I write this, I recall a phone call from my bank a few years ago. I was informed that a large amount of money had been deposited into my investment account, and suspecting it was a mistake, they asked if I was expecting any transfers. After joking, “well, that depends, how much was it?” the man on the phone gave a nervous chuckle, and reminded me that the phone call was being recorded. I laughed and said no, I was not expecting any deposits, and by the time I checked my account there was no trace of any money, other than my own, entering or leaving my account. It sounds to me that under federal requirements, the bank would have faced possible penalties for not reporting the incident, complete with my name, account numbers, and social security number. I am guessing that this information is now floating around in the FinCEN database, just waiting to prove that I’m a terrorist.
Since I was never informed of any collection of my information by the federal government, if the bank did in fact report the incident, that constitutes an unreasonable seizure of my financial records and information, and an unreasonable, warrent-less search of my papers and effects. The Fourth Amendment continues that “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”. Banks are forced to report incidents based on a blanket rule, therefore no warrant has been obtained to collect the information, and certainly the particular place (account) being searched or information being seized has not been specified by the government.
This would be akin to a federal requirement that all houses using more than a certain amount of water be reported by the water company to the EPA, so that the EPA could see if any crimes had been broken. Or what if a black-box recorded everything you did in your car, and sent that information to the government without informing you. 5 years later you are charged for a list of crimes including speeding, rolling through stop-signs, running a red light, failing to yield to pedestrians in a crosswalk, texting while driving, reckless driving, and endangering a child. You lose your license for life, are forced to pay $5,000 in fines, and serve a 6-month jail sentence. This situation is no different than the government collecting all information about transactions over $10,000 and trolling through the data until they find a financial crime, or at least what looks like it could be a case. The point of the rights of the accused in the bill of rights is that there has to be suspicion of a crime before information is collected on someone. In fact, according to an article on justice.gov:
If law enforcement officers in this country believe a crime has been committed and wish to conduct a related search, they must first request a search warrant from a court. A search warrant is a court order that allows limited exploration and inspection in an effort to obtain evidence in support of the crime alleged. Before a judge issues a search warrant, she must be convinced that the requested search, whether it is for a home, car, or other personal property, will likely lead to evidence of the crime.
The legal basis for collecting this information and sharing it between agencies comes from the Banking Secrecy Act, and the USA PATRIOT Act. It is up to vigilant citizens to hold the government accountable for their violations of the Constitution and the Bill of Rights. We also need to hold the politicians accountable who approve bills like the Banking Secrecy Act and USA PATRIOT Act. It is our responsibility as citizens not to elect the type of leaders who would pass unconstitutional bills, and act like that is all the justification they need to violate our rights.