Comment by Manuel_D
11 days ago
Right, but the point is, no law is being avoided. The comment I responded to wrote:
> Always easier when you can avoid the law and just buy it off the shelf. (Emphasis mine)
No law is being avoided, neither in your banking example nor in the situation with Clearview. To be sure, people can have whatever opinion on the law that they want. But I do want to make it clear the the government is not "avoiding" any law here.
> No law is being avoided
Following the conversation, this reads as too strong a statement. The Constitution is law, and it (the fourth amendment) is being avoided via the Bank Secrecy Act. The Constitution supersedes any conflicting Acts of Congress.
Groups did sue after the Bank Secrecy Act, and the cases went all the way to the Supreme Court. The Supreme Court determined that it did not violate the constitution: https://en.wikipedia.org/wiki/Bank_Secrecy_Act
> Shortly after passage, several groups attempted to have the courts rule the law unconstitutional, claiming it violated both Fourth Amendment rights against unwarranted search and seizure, and Fifth Amendment rights of due process. Several cases were combined before the Supreme Court in California Bankers Assn. v. Shultz, 416 U.S. 21 (1974), which ruled that the Act did not violate the Constitution
(1) KYC requirements have changed significantly since 1974, so as applied findings in 1974 won't apply to what we're referring to today.
(2) SCOTUS wrote the bank customers (rather than the bankers in the suit) themselves likely didn't have standing in that suite, which meant the decision was based more around whether the banks had their rights violated. I am not arguing that the bank had its rights violated and even conceded some subset of information transmitted might be 4A compliant but rather the wholesale KYC regime (largely now based on post 9/11 acts) isn't KYC compliant and is an insult to the customers rather than to the bank. I am arguing the clients themselves are having their rights violated, and it appears to consider that to the full extent you need a case where the clients had standing unlike what the justices thought to be the case in 1974.
(3) SCOTUS has overturned their own rulings on constitutionality before, without any material change in the relevant portions of the constitution in the interim.
(4) Failing all the above, the founders have also noted our government acts imperfectly, and even noted as a last resort it can be replaced when this becomes unworkably pervasive. The fact a bunch of guys in wigs interpret something some way that says mass government imposed willy-nilly search of your papers is allowed by the 4A, only provides a much stronger binding for the rest of the government to follow it, not create an objective truth.
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