Your financial records have no Fourth Amendment protections

John Adams was watching from the back of the room when James Otis Jr. argued against British writs of assistance in 1761. These were general warrants giving royal officials unlimited authority to search colonial homes and businesses without naming what they were seeking. Adams later called it the first scene of the first act of American opposition to arbitrary government.

Otis lost the case, but he won something more durable: the Fourth Amendment is his argument, encoded into law.

The amendment’s language is deliberate: Persons, houses, papers, and effects are not to be searched or seized without a warrant based on probable cause, issued with particularity. The Founders chose the word “papers” in particular because correspondence, account books, and financial ledgers formed the infrastructure of private life that crown officials had been seizing through general warrants.

The protection that the framers wrote into our Constitution was not a general right to privacy. Rather, it was a specific warrant requirement for specific records — the same records that federal agencies can now reach through administrative subpoenas that require no judge’s signature.

This is because of two key and relatively recent Supreme Court decisions. U.S. v. Miller in 1976 and Smith v. Maryland in 1979 replaced the Fourth Amendment’s requirement with a doctrine the Founders never intended. They established that information voluntarily shared with a third party loses Fourth Amendment protection.

In Miller, the court held that a bank depositor has no reasonable expectation of privacy in financial records conveyed to the bank. In Smith, the Court extended that reasoning to numbers dialed from one’s phone. In the digital economy, where every financial relationship runs through institutional intermediaries, the........

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