Posted by Orin Kerr:
Fourth Amendment Rights in Online Financial Accounts:
http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250302488
A district court in New Jersey recently decided a case involving law
enforcement access to an online financial account. I couldn't find the
case online, but the citation is Patel v. Hayman, Civ. No. 08-3586
(D.N.J. June 18, 2009), available at 2009 WL 1748964.
The facts, as alleged in the pro se complaint:
Plaintiff alleges that certain of his family members have opened a
brokerage account at Firstrade.com to secure his future. Plaintiff
also maintains a �debit card� account at Rushcard.com. Plaintiff
alleges that in March and April 2007, Defendant Special
Investigations Division Investigator Valentine R. Dolce accessed
Plaintiff's account information, through an Internet connection,
without a warrant and without Plaintiff's permission. Plaintiff
alleges that this action violated his Fourth Amendment right to be
free from unreasonable searches.
As I understand the allegation, the criminal investigator Dolce
allegedly logged on to Patel's online financial account and viewed its
contents. (It's not entirely clear if the allegation is as to the
firsttrade.com account or the rushcard.com account or both, but
potential standing issues aside, it's not clear it matters.) Did these
facts, as alleged, violate the Fourth Amendment? Judge Pisano
dismissed the complaint sua sponte on the ground that they did not:
�A �search� occurs when an expectation of privacy that society is
prepared to consider reasonable is infringed .� U.S. v. Jacobsen,
466 U.S. 109, 113 (1984) (footnote and citations omitted).
The Supreme Court has expressly held that a customer has no
legitimate expectation of privacy in financial records held by a
financial institution and, thus, that a government search of such
records does not violate the Fourth Amendment. See United States v.
Miller, 425 U.S. 435 (1976). Thus, Plaintiff fails to state a claim
for unreasonable search under the Fourth Amendment.
I can understand why Judge Pisano might have been eager to get rid
of this complaint. It is a pro se prisoner lawsuit that seems entirely
bogus, as it seems extremely unlikely that Dolce actually accessed
Patel's account over the Internet (among other things, how would Patel
know?). Still, to the extend I understand the alleged facts, I'm not
sure the result is correct.
The problem is that, as I have [1]noted before, the general rule for
Fourth Amendment searches is that privacy rights normally are
determined by the way in which the information is obtained rather than
whether the information obtained turns out to be private. This is
relevant to Patel v. Hayman because the third-party doctrine cases
like [2]United States v. Miller (cited in Patel) involve asking a
third party for information that had been disclosed to it. For
example, Miller stands for the proposition that if the government asks
a financial institution for its records, divulging the records of a
particular account holder does not implicate the account holder's
rights. The bank is merely disclosing what its employees know.
But that doesn't mean that all financial records are always
unprotected by the Fourth Amendment. If the bank sends you your bank
statement in the mail, and you open the mail and put the statement on
your desk at home, those financial records are just as protected by
the Fourth Amendment as everything else in your home. What matters is
that the home is protected, not that the records would not have been
protected if the government had asked for them from the bank.
In the case of Patel, then, whether the Fourth Amendment would have
been implicated by getting Patel's records directly from the ban via a
subpoena doesn't really answer whether the Fourth Amendment is
implicated by accessing a password-protected account that contains the
same information. That doesn't mean the result us necessarily wrong: I
would want to know more about these accounts, what kind of information
is stored in them, etc. But in my view, the mere fact that they are
financial record accounts should not mean that the Fourth Amendment
categorically does not apply to accessing them.
References
1. http://volokh.com/posts/1229998859.shtml
2. http://supreme.justia.com/us/425/435/
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