In 1761, the Royal Governor of Massachusetts issued “writs of assistance”, which empowered the King’s officers to enter private businesses and homes to look for anything they considered “contraband. The “writs” violated historic English rights prohibiting unlawful searches.
No less an authority than founding father John Adams remarked that public outrage over those “writs” planted the seed that eventually grew into the America Revolution.
Last month, the federal government used the equivalent of a “writ of assistance” to unlawfully obtain private bank information of American citizens. According to Fox News commentator Tucker Carlson, Bank of America (BOA) may have provided the federal government with private, confidential banking transaction information of its customers that occurred around the time of the incident at the capitol building in Washington, DC, on January 17, without requiring the government to comply with the legal requirements of the Fourth Amendment.
BOA reportedly facilitated the government’s illegal ‘writ of assistance” tactic. But though BOA is taking the bad press, they are not the only villains here – it’s the government official who may have asked for the records, in violation of the Bill of Rights. If so, it was federal law enforcement abuse of power at its worst.
Thomas Jefferson said “I sincerely believe that banking establishments are more dangerous than standing armies”. Large multi-state banks are one of the most extensively federally regulated businesses. So when the feds ask a bank for private customer records, even illegally, it’s like Don Corleone making them an offer they can’t refuse.
I have taught search and seizure law for over three decades. I wrote the search and seizure manuals for my former office. Some of our local Judges, who are former prosecutors, still refer to those manuals when ruling on search and seizure matters that come before them. I point his out only to establish my bona fides as an expert on the subject.
This is an encapsulation of the how the Fourth Amendment to the United States Constitution, which was expressly written to prevent “writs of assistance” type government intrusions into our affairs, protects us. That Amendment was included in the Bill of Rights to restrain the federal government. It prohibits any search for something of which a citizen has a reasonable expectation of privacy, unless a warrant is issued by an impartial magistrate particularly describing the place to be searched, and the items to be seized.
Before such a warrant can be issued, the official requesting it has to attest under oath to facts which support the warrant. Those facts must establish a reasonable inference (“probable cause”) that specific evidence of a specific crime will be found in the specific place to be searched.
There are well-defined exceptions to the requirement that searches must be predicated on a warrant. But they require the same specificity – and none of the exceptions apply to the government’s request to BOA for customer records. The criteria reportedly used to obtain those BOA records does not meet the minimum specificity requirements of the Fourth Amendment, so the federal government obtained the records illegally – just like the royal officials in 1761 using “writs of assistance”.
During my prosecutorial career I often obtained financial records from banks (including BOA). Before doing so the banks correctly required me to have either a court authorized search warrant, or subpoena, and I was limited to requesting records of a specific person for a specific period of time. Before a court would issue either, I had to show probable cause that the records I was requesting were evidence of a specific crime by a specific person.
I couldn’t just ask for the records of anyone who happened to use their bank card in a general vicinity around the time a crime was committed. That would be equivalent to a “writ of assistance”. Yet that is exactly how BOA reportedly provided confidential customer records to the federal government.
The Fourth Amendment is about our being “secure in our … papers”.
Bank records are the sort of “papers” that Amendment was intended to protect.
A major bank illegally disclosed private financial information at the unlawful request of the federal government, according to Fox News. Only those frighteningly ignorant of history, or blinded by political partisanship, can condone that.
This situation with BOA illustrates Jefferson’s fear about banks, though I doubt he could have anticipated this collusion between a private bank and the federal government. A bank working with the federal government to unconstitutionally violate the privacy rights of citizens is as insidiously dangerous to our freedom as a standing army.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.