As bipartisan momentum builds in the United States to regulate digital assets and modernize financial systems, one critical issue is rarely discussed: financial privacy. The expansion of surveillance powers in the current financial infrastructure, established by the Bank Secrecy Act (BSA) in 1970, has led to nearly all monetary transactions of Americans being monitored without judicial oversight. Originally targeting organized crime in a largely cash-based economy, the BSA now facilitates extensive data collection on routine transactions—from minor digital payments to hospital bills—by leveraging today´s digitized and interconnected financial landscape.
Central to this environment is the ´third-party doctrine,´ formed after the Supreme Court´s 1976 United States v. Miller decision, which reasons that individuals lack a legitimate expectation of privacy for information shared with banks or other third parties. Over the decades, amendments like those enacted by the Patriot Act extended these obligations and expanded the roster of institutions subject to surveillance, making privacy protections increasingly obsolete. Financial institutions are compelled to file millions of Suspicious Activity Reports (SARs) and currency transaction reports annually—over 25 million combined last year—often over-reporting due to the heavy penalties for underreporting and none for excess. This deluge drowns law enforcement in irrelevant data, undermines true security, and exposes vast amounts of personal information, while providing scant benefit in terms of crime prevention.
Legal precedent, however, is shifting as technology advances. In a series of consequential rulings, the Supreme Court has recognized that privacy protections must adapt to digital realities, such as in United States v. Jones and Carpenter v. United States, which collectively acknowledged that tracking digital information over time can reveal intimately personal details and thus merits constitutional safeguards. As digital payments become increasingly pervasive and detailed, the logic of these rulings suggests a growing disconnect between the BSA´s sweeping surveillance and the Fourth Amendment´s privacy guarantees. The article advocates for Congress to revisit and restrain the BSA, especially concerning mass data collection and warrantless access, arguing that financial surveillance should not be a precondition for modern economic participation. Protecting financial privacy, the author concludes, is not just a regulatory issue but a fundamental democratic right, integral to the future of freedom in a digitized society.
