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Warrantless Financial Surveillance by U.S. Gov’t on Pace to Hit All-Time High in 2016

Do you remember Eliot Spitzer?

Back in 2008, Spitzer was the up-and-coming Governor of New York State, promoted by many as an ideal presidential candidate of the future.  All that came to a crashing halt when news leaked out that the United States Government had caught Governor Spitzer with prostitutes.  Spitzer resigned from office in shame, his political career brought to an abrupt finish.

All this is broad public knowledge. However, many have forgotten exactly how Eliot Spitzer’s political rise was so effectively spiked: warrantless surveillance by agents of the United States government.  As NPR’s Adam Davidson reported during the Spitzer scandal of 2008, Spitzer got caught up in a broad web of U.S. government surveillance of Americans’ financial activity, even though the government had not a hint of prior suspicion that Spitzer was doing anything illegal. Spitzer was caught using a warrantless “suspicious activity report.” Spitzer’s SAR looked like this:

Copy of Eliot Spitzer Suspicious Activity Report

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Those are some personal, damaging and very particular details about Spitzer’s life, and thanks to the suspicious activity report system, they were all gathered and sent to the government without a warrant.

The federal government has ordered banks and other financial institutions across the country to engage in surveillance as a matter of routine and pass on all “suspicious activity reports” [SARs] for government review. Davidson explained how these SARs work back in 2008:

Banks monitor every transaction. Every one, no matter how small…. The software is checking to see if maybe that $4 is part of a pattern…. The report goes to a bank’s compliance officer, listing all recent suspicious transactions. Every transaction is given a numerical score…. The computer makes the score based on who is making the transaction, where does he come from, who is he associated with, what else is he up to. Every bank customer has, somewhere, in some computer database, a risk assessment score.

Contrast this activity to the 4th Amendment to the U.S. Constitution, which guarantees that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Despite this constitutional guarantee on paper, the surveillance of Eliot Spitzer’s papers and effects occurred, just as it occurs for all Americans. Such surveillance occurs all the time, regardless of the constitution, without a warrant or prior probable cause. When a computer algorithm surpasses a threshold, agents of the U.S. government are sent a report — the suspicious activity report.

Just how many suspicious activity reports have been sent to the U.S. government over recent years?  The Financial Crimes Enforcement Network keeps its twenty years of data squirreled in separate places — from 1996 to 2008 here, from 2003 to 2012 here, and from 2013 through June 2016 here. Stitching together these various reports provides us a forest-for-the-trees view of the large-scale changes in the volume of suspicious activity reports collected by the U.S. government:

Warrantless Suspicious Activity Reports collected by the U.S. Government, 1996 to 2016

As you can see, the volume of suspicious activity reports has risen dramatically from 62,743 in 1996 to 1,812,248 in 2015. The last year’s count in the graph — for 2016 — is an estimate based on the 973,477 suspicious activity reports collected by agents of the U.S. government in the first half of the year. If the current trend continues, a record 1,946,954 suspicious activity reports will be collected by the U.S. government in 2016.

SARs rose dramatically under the administration of President George W. Bush, but they have risen to even higher levels under the administration of President Barack Obama. In at least one case, the meteoric rise of an American political figure was dramatically truncated by this system of warrantless surveillance.  How else will these suspicious activity reports be used to change American politics — to change American history?

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