Reference no: EM133812652

Question

In United States v. Miller, the Supreme Court held that a bank customer does not have a legally recognizable expectation of privacy in records of accounts maintained by a bank. Miller's bank turned over his financial records to the Treasury Department's Alcohol, Tobacco and Firearms Bureau without any notification to Miller. The Court ruled that Miller had no reasonable expectation of privacy. The RFPA, was essentially designed to reverse Miller in the context of financial records and provide standing for individuals to complain about the improper release of information about them in records maintained by financial institutions.[1]

I think it is debatable if the RFPA provides "meaningful" protection for customers financial records. From a positive perspective it requires that customers be notified before disclosure of their records to the government agency and have the right to challenge/object to the release. However as explained in Week 1 Lecture it is relatively easy for government entities to obtain financial records under the RFPA, as the government need only show that there is "reason to believe that the records sought are relevant to a legitimate law enforcement inquiry whereas under the fourth amendment which requires showing "probable cause" that the document was related to criminal activity [2]. Additionally there are several exceptions in which financial records are not protected by the Act and disclosure is permitted without requiring authorization, subpoena, or a warrant. I am of the view that exceptions do lessen the strength of a law, rule or regulation to some degrees. As such the RFPA does afford customers protection of their financial records but whether it can be considered meaningful is hard to tell.

In terms of if it is justified by the nature of the threats our society faces from terrorism and international organized crime this points back to the exceptions noted above which includes (1) Disclosures pursuant to other federal statutes or rules, administrative or judicial proceedings, and legitimate functions of supervisory agencies and (2) Emergency disclosures and disclosure to federal agencies charged with foreign intelligence or counter intelligence or other national security protective functions. The act does not provide protection to financial records in these cases.