Miller in a Cashless Society: Financial Surveillance and the Fourth Amendment

Abstract

In United States v. Miller, the Supreme Court declared that the Fourth Amendment does not protect Americans’ bank records because there is no reasonable expectation of privacy in the data. More recently, while limiting the third-party doctrine in Carpenter v. United States, the Court expressly left Miller standing by distinguishing the checks and deposit slips in Miller from the cell site location information in Carpenter. The Carpenter majority described the bank records in Miller as containing “limited types of personal information,” but the continued use of that distinction relies on an outdated picture of financial technology and consumer habits. Financial records have evolved significantly since Miller was decided in 1976, and ever-increasing reporting and retention requirements have created massive financial databases. In an increasingly cashless society, financial records can reveal intimate and comprehensive information about nearly every American. Still, this Note recognizes that courts are unlikely to find them worthy of constitutional protection, and it does not argue that all searches of them should be subject to a warrant requirement. This Note instead aims to highlight our vast financial surveillance infrastructure, consider its costs and benefits, and advocate for Congressional narrowing of the procedures for access to and use of financial records by government agents.