The Securities and Exchange Commission arrived in my professional world not with a warrant but with a letter. A Wells Notice, technically — the agency’s notification that staff intended to recommend enforcement action to the commission. The subject wasn’t me. I was called in as an expert witness in a fiduciary dispute. But that engagement introduced me to what federal financial surveillance looks like from inside the process: document demands reaching back years, trading records, client communications, all obtained not through a judge but through an administrative subpoena.
The Fourth Amendment says the government can’t conduct unreasonable searches and seizures without a warrant supported by probable cause. I knew that. What I understood more fully after that engagement is what the Fourth Amendment doesn’t say: it doesn’t say the government can’t compel your bank, your broker, or your custodian to hand over your financial records without telling you. That authority rests on a doctrine the Supreme Court developed in the 1970s, and it has shaped the relationship between American citizens and their financial institutions in ways that most people who open brokerage accounts never consider.
The third-party doctrine holds that information voluntarily shared with a third party carries no Fourth Amendment protection. The government doesn’t need a warrant to obtain what you’ve given someone else. United States v. Miller (1976) established this for bank records. A depositor who shares financial information with his bank, the court held, has assumed the risk that the bank will share it with the government. The expectation of privacy in records held by a third-party institution isn’t an expectation the Fourth Amendment recognizes as reasonable. Smith v. Maryland (1979) extended the same logic to phone numbers dialed — the pen register case that laid the doctrinal groundwork for the metadata surveillance debates that followed the Edward Snowden disclosures four decades later.
Miller is the relevant case for virtually every American who participates in the economy. Your account statements, trade confirmations, wire transfer records, and margin account activity belong, in the constitutional sense that matters, to your broker and your bank, not to you. The government can have what they have, on administrative demand, without a warrant, without probable cause, and without notifying you that the demand has been made.
I’ve spent 30 years on the practitioner side of this. The SEC’s administrative subpoena authority is a professional reality I work around, not a constitutional abstraction I get to argue about. The Right to Financial Privacy Act of 1978 provides some procedural protection, but the act’s exceptions are broad enough to swallow most of the rules in active regulatory investigations.
Carpenter v. United States (2018) was the first significant crack in the third-party doctrine’s wall. The Supreme Court held, 5-4, that obtaining seven days or more of historical cell-site location information requires a warrant, notwithstanding the third-party doctrine’s general rule. Chief Justice John Roberts, writing for the majority, reasoned that the comprehensive nature of the location data — its ability to reconstruct the “privacies of life” in a way that a single phone number or bank transaction can’t — brought it within Fourth Amendment protection despite its third-party character. The decision was narrow. Roberts emphasized that the court wasn’t disturbing Miller or Smith. Traditional business records, he wrote, remain outside Fourth Amendment protection.
The dissents in Carpenter argued that the majority had created an unprincipled exception. Justice Anthony Kennedy’s dissent put the logical problem plainly: the majority’s approach provides no limiting principle. Every future litigant will argue that his data is more like Carpenter’s cell records than Miller’s bank records, and courts will have to draw lines that the Constitution’s text provides no guidance for drawing.
After Carpenter, the constitutional status of comprehensive financial surveillance — the kind that aggregates transaction records across accounts, institutions, and years — is genuinely uncertain. The logical extension of Carpenter’s reasoning is that such aggregation might cross the threshold Roberts identified: the point at which third-party data reveals “the privacies of life” in ways the Fourth Amendment was designed to protect.
Justice Louis D. Brandeis coined “the right to be let alone” in 1928, dissenting in Olmstead v. United States. “The right to be let alone,” he wrote, is “the most comprehensive of rights and the right most valued by civilized men.” Katz v. United States (1967) overruled Olmstead, establishing that the Fourth Amendment protects people, not places.
OPINION: POLICE SURVEILLANCE IS NOT JUST FOR EMERGENCIES, NO MATTER WHAT THEY SAY
Financial records are the communications of economic life. The government’s ability to obtain them wholesale, on administrative demand, without a warrant or notice to the account holder, is a feature of the current doctrine that Brandeis would have recognized as precisely the kind of intrusion the Fourth Amendment was written to prevent.
He was in dissent then. Whether the court revisits what “reasonable” means when the surveillance is financial and the government never had to ask a judge remains open.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a Bachelor of Science from Northeastern University and has completed postgraduate studies at the University of California, Los Angeles, the University of Pennsylvania, and Harvard University. He writes about issues in finance, constitutional law, national security, human nature, and public policy.