Note

Closing the Financial Privacy Loophole: Defining “Access” in the Right to Financial Privacy Act

W. Faith McElroy

There is a hole in Fourth Amendment protection that is teetering on the verge of rapid expansion. The omnipresence of technology in the 21st century has made the use of intermediaries necessary for fully participating in society. From sending messages through Facebook to driving past cellular phone towers, many everyday activities involve sharing information about ourselves with the third parties who give us access to new technology. The scope of privacy law, however, has not advanced at a similar pace. In the 1976 case United States v. Miller, the Supreme Court punctured the Fourth Amendment privacy protections set forth in Katz v. United States. In Katz, the Court had extended protection from unreasonable searches and seizures to areas in which a person has a “reasonable expectation of privacy.” Nine years later in Miller, the Court decided that there is no legitimate expectation of privacy in information handed over to third parties (in that case, a bank). The Court asserted that “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities.” Smith v. Maryland widened this gap in Fourth Amendment protection to include communication information. The Court stated that there is no reasonable expectation of privacy in numbers dialed into phones, since the dialer is aware that the “phone company has facilities for recording this information” and that it does, in fact, record it.

Part I of this Note will discuss the Miller decision and the hole it left in the Fourth Amendment’s protection of financial information left in the hands of trusted third parties. Part II will discuss Congress’s response to Miller in the RFPA. Part III will discuss the cramped interpretation of the RFPA affirmed by the Sixth Circuit, its misapplication of the statute, and policy problems arising from the acceptance of the court’s interpretation. Part IV will discuss statutory injuries and how the ambiguous outcome of the Spokeo case could threaten financial privacy protections generally and those specifically provided by the RFPA. Part V will discuss the proposed solution to the problem.