“What Would You Like the Power to Do?”
When you use an ATM while out of town, you probably don’t expect your bank to report your transactions and location to the FBI. But that is exactly what Bank of America did to an unknown but undoubtedly large number of customers who used their credit or debit cards in Washington, D.C., from Jan. 5 to Jan. 7, 2021.
PPSA heartily agrees with the prosecution of those who planned and executed the ransacking of the U.S. Capitol on Jan. 6 and beat Capitol Hill police officers senseless. But it does us no good to uphold the inviolability of the Capitol and the constitutional process for electing a president if we jettison the Constitution by illicitly surveilling large numbers of innocent Americans as potential suspects.
House Judiciary Chairman Jim Jordan (R-OH) and subcommittee chairman Thomas Massie (R-KY) brought this incident to light when they announced an investigation of Bank of America, which compiled mass information on bank users only to “voluntarily and without any legal process” gift it to the FBI.
Bank of America’s slogan, “What would you like the power to do?” seems to be an open invitation to the FBI to snoop. “This information undoubtedly included private details about Bank of America customers who had nothing at all to do with the events of January 6,” FBI whistleblower George Hill testified before Congress. “Even worse, BoA provided information about Americans who exercised their Second Amendment right to purchase a firearm.”
The FBI has had a duty to investigate the terrible events of Jan. 6. But it doesn’t have the right to obtain mass, bulk customer information from private entities.
Looking beyond this issue, the greater danger is that the FBI, like a dozen other federal agencies, can simply purchase much of our consumer information from third-party data brokers who sell our private information scraped from apps. The easy coordination of Bank of America with the FBI also begs for greater transparency for the FBI’s backdoor access to customer data from other corporations, especially social media companies. The demand of the two congressmen for Bank of America’s internal communications on this collection and for the bank’s communications with the FBI ought to shed light on the nature of their collaboration. What precipitated this curious gift of customer data to the FBI?
The FBI has a duty to investigate. When it does, and when it wants access to Americans’ private communications, this duty necessarily requires warrants, as the Constitution requires.