Amicus Curiae Brief — James Harper, Petitioner v. Michael Faulkender, Acting Commissioner of Internal Revenue Service, et al.

No. 24-922

In the Supreme Court of the United States

JAMES HARPER,

Petitioner,

V.

DOUGLAS O’DONNELL, ACTING COMMISSIONER

OF THE INTERNAL REVENUE SERVICE,

Respondent.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF OF AMICI CURIAE STATES OF

WEST VIRGINIA, KANSAS, NEBRASKA,

NORTH DAKOTA, AND OHIO

IN SUPPORT OF PETITIONER

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

FRANKIE DAME

Assistant Solicitor General

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

TABLE OF CONTENTS

Introduction and Interests of Amici Curiae .................... 1

Summary of Argument ........................................................ 3

Argument .............................................................................. 4

I.

The Court should grant the petition to

recognize a reasonable expectation of privacy

in financial records ...................................................... 7

II.

Alternatively, the Court should grant the

petition to clarify that Miller doesn’t extend

to suspect-less dragnet searches ............................. 15

Conclusion ........................................................................... 23

II

TABLE OF AUTHORITIES

Page(s)

Cases

ACLU v. Clapper,

785 F.3d 787 (2d Cir. 2015) ...................................... 2, 18

Boyd v. United States,

116 U.S. 616 (1886) ......................................................... 5

Brown v. Texas,

443 U.S. 47 (1979) ........................................................... 2

Burrows v. Superior Court,

529 P.2d 590 (Cal. 1974) ..........................8, 10, 11, 14, 18

Cal. Bankers Ass’n v. Shultz,

416 U.S. 21 (1974) ......................................... 5, 10, 11, 15

Carpenter v. United States,

585 U.S. 296 (2018) .................... 3, 6, 7, 10, 11, 16, 17, 20

Charnes v. DiGiacomo,

612 P.2d 1117 (Col. 1980) ....................................... 11, 13

Commonwealth v. Augustine,

4 N.E.3d 846 (Mass. 2014) ............................................. 8

Commonwealth v. DeJohn,

403 A.2d 1283 (Pa. 1979) ................................................ 8

Coolidge v. New Hampshire,

403 U.S. 443 (1971) ....................................................... 22

District of Columbia v. Heller,

554 U.S. 570 (2008) ......................................................... 1

Everett v. State,

186 A.3d 1224 (Del. 2018) ............................................... 6

III

TABLE OF AUTHORITIES

(continued)

Page(s)

Hiibel v. Sixth Jud. Dist. Ct.,

542 U.S. 177 (2004) ......................................................... 2

Kyllo v. United States,

533 U.S. 27 (2001) ......................................................... 15

Maryland v. King,

569 U.S. 435 (2013) ......................................................... 2

In re May 1991 Will Cnty. Grand Jury,

604 N.E.2d 929 (Ill. 1992) .............................................. 9

N.W. Airlines, Inc. v. Minnesota,

322 U.S. 292 (1944) ....................................................... 15

Olmstead v. United States,

277 U.S. 438 (1928) ....................................................... 15

People v. McKnight,

446 P.3d 397 (Colo. 2019) ............................................... 7

People v. Nesbitt,

938 N.E.2d 600 (Ill. Ct. App. 2010) ....................... 10, 11

People v. Seymour,

536 P.3d 1260 (Colo. 2023) ........................................... 11

Riley v. California,

573 U.S. 373 (2014) ..................................5, 13, 16, 17, 22

Samson v. State,

919 P.2d 171 (Alaska Ct. App. 1996) ............................. 9

State v. Andrews,

234 A.3d 1254 (N.J. 2020)......................................... 9, 10

State v. Baker,

903 N.W.2d 469 (Neb. 2017) ........................................ 22

IV

TABLE OF AUTHORITIES

(continued)

Page(s)

State v. Biery,

314 P.3d 900 (Kan. Ct. App. 2013) .............................. 22

State v. Clampitt,

364 S.W.3d 605 (Mo. Ct. App. 2012) ........................... 22

State v. Domicz,

907 A.2d 395 (N.J. 2006) ................................................ 9

State v. Ghim,

381 P.3d 789 (Or. 2016)................................................... 2

State v. Hempele,

576 A.2d 793 (N.J. 1990) .............................................. 13

State v. Hinton,

319 P.3d 9 (Wash. 2014) ............................................... 12

State v. Kluss,

867 P.2d 247 (Idaho Ct. App. 1993)............................... 9

State v. Leonard,

943 N.W.2d 149 (Minn. 2020)....................................... 13

State v. McAllister,

875 A.2d 866 (N.J. 2005) .................................... 9, 11, 13

State v. Miles,

156 P.3d 864 (Wash. 2007) ............................................. 9

State v. Olsen,

399 P.3d 1141 (2017) ..................................................... 22

State v. Thompson,

810 P.2d 415 (1991) ................................................. 10, 11

State v. Walton,

324 P.3d 876 (Haw. 2014) ................................... 2, 11, 13

V

TABLE OF AUTHORITIES

(continued)

Page(s)

In re Under Seal,

749 F.3d 276 (4th Cir. 2014) ......................................... 20

United States v. Knotts,

460 U.S. 276 (1983) ....................................................... 23

United States v. Miller,

425 U.S. 435 (1976) .............................3, 4, 5, 6, 8, 11, 12,

14, 15, 22, 23, 24

United States v. Smith,

110 F.4th 817 (5th Cir. 2024) ................................. 12, 23

Warden, Md. Penitentiary v. Hayden,

387 U.S. 294 (1967) ......................................................... 4

Wikimedia Found. v. Nat’l Sec. Agency,

857 F.3d 193 (4th Cir. 2017) ......................................... 21

Winfield v. Div. of Pari-Mutuel Wagering,

Dep’t of Bus. Regul.,

477 So. 2d 544 (Fla. 1985) .............................................. 8

Zweibon v. Mitchell,

516 F.2d 594 (D.C. Cir. 1975) ........................................ 1

Constitutional Provisions

MICH. CONST. art. I, § 11 ..................................................... 6

MO. CONST. art. I, § 15 ......................................................... 6

U.S. CONST. amend. IV ........................................................ 1

VI

TABLE OF AUTHORITIES

(continued)

Page(s)

Statutes

N.H. REV. STAT. § 359-C:8-C:10 ......................................... 6

Other Authorities

Adam Lamparello,

City of Los Angeles v. Patel: The

Upcoming Supreme Court Case No

One Is Talking About,

20 TEX. J. C.L. & C.R. 135 (2015) .......................... 19, 23

Aditi A. Prabhu,

Contracting for Financial Privacy: The

Rights of Banks and Customers Under

the Reauthorized Patriot Act,

39 LOY. U. CHI. L.J. 51 (2007) ..................................... 15

Alex Brown,

Derivative-Consent Doctrine and Open

Windows: A New Method to Consider

the Fourth Amendment Implications of

Mass Surveillance Technology,

66 CASE W. RES. L. REV. 261 (2015) ........................... 16

Avidan Y. Cover,

Corporate Avatars and the Erosion of

the Populist Fourth Amendment,

100 IOWA L. REV. 1441 (2015) ...................................... 12

VII

TABLE OF AUTHORITIES

(continued)

Page(s)

Ayesha K. Rasheed,

Personal Genetic Testing and the

Fourth Amendment,

2020 U. ILL. L. REV. 1249 (2020) ................................... 6

Bernard Marr,

Big Data: 20 Mind-Boggling Facts

Everyone Must Read,

FORBES (Sept. 30, 2015),

https://tinyurl.com/36j7nx6w ....................................... 17

Bernard Marr,

The Next Breakthrough In Artificial

Intelligence: How Quantum AI Will

Reshape Our World,

FORBES (Oct. 8, 2024),

https://perma.cc/4UJG-KHLM ................................... 18

Carrie Leonetti,

A Grand Compromise for the Fourth

Amendment,

12 J. BUS. & TECH. L. 1 (2016) .................................... 19

Catherine Arcabascio,

A Genetic Surveillance State: Are We

One Buccal Swab Away from A Total

Loss of Genetic Privacy?,

63 HOW. L.J. 117 (2020) ............................................... 19

VIII

TABLE OF AUTHORITIES

(continued)

Page(s)

Daniel Gelb & Richard Gelb,

Framing the Third-Party Doctrine

Around Society’s Dependence on the

Cloud, Artificial Intelligence, and the

Internet of Things,

48 CHAMPION 30 (Sept. 2024) .................................. 3, 17

Daniel J. Solove,

Data Mining and the Security-Liberty

Debate, 75 U. CHI. L. REV. 343 (2008) ............ 17, 19, 20

David A. Harris,

Riley v. California and the Beginning of

the End for the Third-Party Search

Doctrine,

18 U. PA. J. CONST. L. 895 (2016) ................................ 17

Deepali Lal,

Criminal Procedure-Technology in the

Modern Era,

43 U. ARK. LITTLE ROCK L. REV. 519

(2021) .............................................................................. 20

Elspeth A. Brotherton,

Big Brother Gets A Makeover:

Behavioral Targeting and the ThirdParty Doctrine,

61 EMORY L.J. 555 (2012) ................................ 19, 20, 23

IX

TABLE OF AUTHORITIES

(continued)

Page(s)

Helen Winters,

An (Un)reasonable Expectation of

Privacy? Analysis of the Fourth

Amendment When Applied to Keyword

Search Warrants,

107 MINN. L. REV. 1369 (2023) ................................ 3, 18

Ishan Kumar,

The Fourth Party Doctrine: Regulating

Big Data with an Inference-Based

Approach,

105 CORNELL L. REV. ONLINE 94 (2020) ................... 20

Jane R. Bambauer,

Filtered Dragnets and the AntiAuthoritarian Fourth Amendment,

97 S. CAL. L. REV. 571 (2024) ................................ 20, 23

Jeremy Connell,

You Can’t Teach Old Katz New Tricks:

It’s Time to Revitalize the Fourth

Amendment,

78 U. MIAMI L. REV. 171 (2023) ........................ 9, 14, 20

Kevin Johnson,

The Use of Clearview AI to Support

Warrants Violates the Fourth

Amendment,

34 FORDHAM INTELL. PROP. MEDIA &

ENT. L.J. 991 (2024) ..................................................... 15

X

TABLE OF AUTHORITIES

(continued)

Page(s)

Laurie Durcan & Bruce K. Riordan,

Banking Disclosures, Financial

Privacy, and the Public Interest,

6 ANN. REV. BANKING L. 391 (1987) ........................... 13

Luiza M. Leão,

A Unified Theory of Knowing

Exposure: Reconciling Katz and

Carpenter,

97 N.Y.U. L. REV. 1669 (2022) .................................... 12

Matthew Radford,

Back to the Future: Revisiting State

Constitutions to Protect Against New

Technological Intrusions,

81 WASH. & LEE L. REV. 1641 (2024) ....................... 7, 8

Matthew Tokson, The Aftermath of

Carpenter: An Empirical Study of

Fourth Amendment Law, 2018-2021,

135 HARV. L. REV. 1790 (2022) ............................ 7, 8, 19

Michael Gentithes,

App Permissions and the Third-Party

Doctrine,

59 WASHBURN L.J. 35 (2020)....................................... 19

Nadine Strossen,

Beyond the Fourth Amendment:

Additional Constitutional Guarantees

That Mass Surveillance Violates,

63 DRAKE L. REV. 1143 (2015) ................................ 5, 22

XI

TABLE OF AUTHORITIES

(continued)

Page(s)

Nathan F. Wessler & Max Behrman,

Challenging the Warrantless Bulk

Surveillance of Money Transfer

Records,

47 CHAMPION 42 (May 2023) ....................................... 22

Nicole B. Cásarez,

The Synergy of Privacy and Speech,

18 U. PA. J. CONST. L. 813 (2016) ............................ 2, 12

Noah Lesiuk,

Ushering in A New Era: Assessing the

Reasonable Expectation of Privacy

Vis-à-Vis Cryptocurrency and

Blockchain Data,

46 MAN. L.J. 206 (2024) ................................................ 10

Omri Marian,

A Conceptual Framework for the

Regulation of Cryptocurrencies,

82 U. CHI. L. REV. DIALOGUE 53 (2015). .................... 21

Orin S. Kerr,

Digital Evidence and the New

Criminal Procedure,

105 COLUM. L. REV. 279 (2005) ................................... 21

Paul Ohm,

The Fourth Amendment in a World

Without Privacy,

81 MISS. L.J. 1309 (2012)................................................ 2

XII

TABLE OF AUTHORITIES

(continued)

Page(s)

PRINCIPLES OF THE LAW,

POLICING

(AM. LAW. INST., Tentative Draft No. 3,

2021) ............................................................................... 16

Rhea Bhatia,

A Loophole in the Fourth Amendment:

The Government’s Unregulated

Purchase of Intimate Health Data,

98 WASH. L. REV. ONLINE 67 (2024) .......................... 19

Robert J. Delahunty & John Yoo,

Against Foreign Law,

29 HARV. J.L. PUB. POL’Y 291 (2005) ............................ 7

Stephen E. Henderson,

Learning from All Fifty States: How to

Apply the Fourth Amendment and Its

State Analogs to Protect Third Party

Information from Unreasonable

Search,

55 CATH. U. L. REV. 373 (2006) ............................... 8, 18

Thomas Y. Davies,

Recovering the Original Fourth

Amendment,

98 MICH. L. REV. 547 (1999) .......................................... 8

Tyler O’Connell,

Two Models of the Fourth Amendment

and Hashing to Investigate Child

Sexual Abuse Material,

53 U. PAC. L. REV 293 (2021) ....................................... 12

XIII

TABLE OF AUTHORITIES

(continued)

Page(s)

V. Alexander Monteith,

Cell Site Location Information: A

Catalyst for Change in Fourth

Amendment Jurisprudence,

27 KAN. J.L. & PUB. POL’Y 82 (2017) .......................... 16

Wayne LaFave,

Examination of financial and other

business records, in

SEARCH & SEIZURE (6th ed., 2024) .............. 5, 6, 14, 18

William S. Fallon,

Imperfect Protection Against Perfect

Enforcement: When Procedure Is Not

Enough,

57 CONN. L. REV. 279 (2024) ........................................ 23

INTRODUCTION

AND INTERESTS OF AMICI CURIAE*

Some governmental powers are so potent that our

constitutional system of ordered liberty takes them out of

“the hands of the government.” District of Columbia v.

Heller, 554 U.S. 570, 634 (2008). A dragnet search of

thousands upon thousands of people’s intimate financial

records, for example. Yes, the search might help

investigators solve crimes. But the Founders long ago

decided that—whatever an invasive fishing expedition’s

contribution to order—it isn’t worth the corresponding

loss of liberty.

“The very existence of” such a

“tremendous power” “renders it susceptible to abuse and

endangers” citizens’ “fundamental personal liberties.”

Zweibon v. Mitchell, 516 F.2d 594, 604 (D.C. Cir. 1975).

This case shows how such essentials have been too

often forgotten. Here, the Internal Revenue Service

conducted a warrantless dragnet search of 14,355

Coinbase accounts’ registration information. With no

court signoff, the government trawled through reams of

identifying customer details: “records of account activity

including transaction logs or other records identifying the

date, amount, and type of transaction,” “the post

transaction balance, and the names of counterparties to

the transaction” (about 9 million transactions total); and

account statements and invoices. Pet.App.8a. Everything

about this expedition looks like a search. See U.S. CONST.

amend. IV. Yet the First Circuit said it wasn’t because it

fell “squarely within this ‘third party doctrine’ line of

precedent.” Pet.App.13a.

Under Supreme Court Rule 37, amici timely notified counsel of

record of their intent to file this brief.

*

2

Surely Fourth Amendment protections are not “really

so tepid that the government can accidentally-on-purpose

gather and scrutinize enormous quantities of” data with

only a “perfunctory dismissal under the third party

doctrine.” Nicole B. Cásarez, The Synergy of Privacy and

Speech, 18 U. PA. J. CONST. L. 813, 871 (2016). The Fourth

Amendment should evenly “balance[]” civil liberty and law

enforcement. Hiibel v. Sixth Jud. Dist. Ct., 542 U.S. 177,

178 (2004). And that “balance” should “tilt[] in favor of

freedom from police interference.” Brown v. Texas, 443

U.S. 47, 52 (1979). After all, solving crimes “occupies a

lower place in the American pantheon of noble objectives

than the protection of our people from suspicionless lawenforcement searches.” Maryland v. King, 569 U.S. 435,

481 (2013) (Scalia, J., dissenting).

Yet the third-party doctrine as it’s applied today—

unqualifiedly to financial records, with hardly a nod to

major technological innovations—has distorted the

Fourth Amendment’s delicate balance, elevating order

over liberty. And although the third-party doctrine is

among today’s most “weighty constitutional issues,”

ACLU v. Clapper, 785 F.3d 787, 824 (2d Cir. 2015), it has

received little attention in recent years from this Court.

That position of neutrality has allowed the doctrine to

mutate into something else entirely. It thus deserves to

be the Court’s “central focus” again. Paul Ohm, The

Fourth Amendment in a World Without Privacy, 81

MISS. L.J. 1309, 1331 (2012).

Now, then, is the time to act. Third-party doctrine

questions are “aris[ing] with increasing frequency” as our

economy relies more on companies storing and

aggregating “vast amounts of data.” State v. Ghim, 381

P.3d 789, 795 (Or. 2016). Although these “[r]apid changes

in technology,” State v. Walton, 324 P.3d 876, 908 (Haw.

3

2014), have led to “large aggregat[ions] of personal data,”

“the law has not progressed in response,” Helen Winters,

An (Un)reasonable Expectation of Privacy? Analysis of

the Fourth Amendment When Applied to Keyword

Search Warrants, 107 MINN. L. REV. 1369, 1385 (2023).

That’s led to “gaps” in constitutional protections—and

these gaps are growing. Id. At the same time, our

“technological environment” “can only function by

providing information to third parties.” Daniel Gelb &

Richard Gelb, Framing the Third-Party Doctrine

Around Society’s Dependence on the Cloud, Artificial

Intelligence, and the Internet of Things, 48 CHAMPION 30,

39 (Sept. 2024). So it’s “inevitable” that this Court “will

have to continue to revisit” this issue. Id.

The Court should grant the petition and lay at least

some of these questions—and abuses—to rest.

SUMMARY OF ARGUMENT

I. The Court should apply Carpenter’s reasoning to

Miller and overturn it.

Carpenter exempted cell site location information (or

CSLI) from the third-party doctrine because it effectively

painted an involuntary but nevertheless comprehensive

and revealing picture of a person’s life. Financial

information does the same. Knowing how a person spends

her money reveals everything from her politics to her love

life to her doctors. A dozen States have been consistently

saying just that for fifty years. Most legal scholars

(alongside several of this Court’s justices) have agreed.

And because people can’t participate in society without

banking—and online banking in particular—sharing

financial details with a financial institution is involuntary.

4

Miller is right that a person loses some privacy when

she banks. But it was wrong to treat privacy as an all-ornothing commodity. A person can reveal their financial

data to a bank and still reasonably believe that it will be

kept private—a reality the Constitution should

acknowledge.

II. Alternatively, the Court should grant the petition

to address the ever-increasing danger of dragnet searches

under the third-party doctrine.

This Court has long been sensitive to how the Fourth

Amendment interacts with technology. Exponential

increases in data collection (internet of things), storage

(the cloud), and processing (quantum computing and

artificial intelligence) have upended the third-party

doctrine. A tech-blind, absolutist third-party doctrine will

greenlight dragnet acquisitions and searches of anything

from dating-app information to comprehensive consumer

data to DNA test results. These activities implicate First

Amendment protections, too.

One solution is to ban dragnet searches resting on the

third-party doctrine, limiting Miller to identified-suspect

searches. This cabining is easy to reconcile with Miller’s

facts, which were nothing like a dragnet search. And it’s

more consonant with American jurisprudence’s dislike of

governments’ “exploratory rummaging.”

ARGUMENT

Fourth Amendment protections today aren’t what the

Founders hoped they would be. The provision was largely

“a reaction to the evils of the use of the general warrant in

England and the writs of assistance in the Colonies.”

Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 301

(1967).

British officials used these tools to

5

indiscriminately and generally search whomever and

wherever they wanted. That intrusion then became a

“driving force[] behind the Revolution.”

Riley v.

California, 573 U.S. 373, 403 (2014). Indeed, such

measures might have been “perhaps the most prominent

event which inaugurated” the Revolution. Boyd v. United

States, 116 U.S. 616, 625 (1886) (emphasis added).

The Fourth Amendment’s central purpose was

partially undermined by United States v. Miller, 425 U.S.

435 (1976). There, the government accessed without a

warrant about three months’ worth of Mr. Miller’s

“savings, checking, loan,” and “other[]” records, including

“checks, deposit slips,” and financial and monthly

statements. Miller, 425 U.S. at 437-38. Because Miller

“voluntarily conveyed” this information to his bank and its

employees, the Court said, he lacked a reasonable

expectation of privacy in that financial information—even

though he shared it “for a limited” commercial “purpose.”

Id. at 442-43. As future courts recognized, Miller’s

absolute language left little (really, no) room for

exceptions.

To many, Miller was “dead wrong” from the start.

Wayne LaFave, Examination of financial and other

business records, in 1 SEARCH & SEIZURE § 2.7(c) (6th

ed., 2024); Nadine Strossen, Beyond the Fourth

Amendment: Additional Constitutional Guarantees That

Mass Surveillance Violates, 63 DRAKE L. REV. 1143, 1150

(2015) (saying it has always “been strongly criticized”).

Justices Douglas, Marshall, and Brennan all flagged

issues with Miller and its underlying rationale. Cal.

Bankers Ass’n v. Shultz, 416 U.S. 21, 71-99 (1974)

(dissenting opinions); Miller, 425 U.S. at 447-56 (same).

Scholarly consensus was that Miller’s under-reasoned,

sweeping conclusion did “great violence” to Fourth

6

Amendment Protections. LaFave, supra, § 2.7(c). Most

everyone saw that “unrestricted government access” to

“massive” tranches of financial records “pose[d] a severe

threat to civil liberties and privacy.” Id.

Congress and the States did what they could,

responding to Miller by passing legislation protecting

financial privacy. Those efforts strongly telegraphed that

Miller took “too narrow a view of societal expectations of

privacy.” Everett v. State, 186 A.3d 1224, 1233-34 (Del.

2018) (discussing the Right to Financial Privacy Act); see,

e.g., N.H. REV. STAT. § 359-C:8-C:10 (state analog to

RFPA). And some States eventually constitutionally

protected electronic records. See MICH. CONST. art. I,

§ 11; MO. CONST. art. I, § 15.

But this Court took perhaps the biggest step forward

about seven years ago, in Carpenter v. United States, 585

U.S. 296 (2018). There, the Court struck a blow to the

unqualified third-party doctrine when it held that the

doctrine doesn’t apply to CSLI. The Court explained that

CSLI offers “an intimate window into a person’s life,

revealing” their “familial, political, professional, religious,

and sexual associations” and showing the “privacies of

life.” Id. at 311. And it wasn’t fair to say that cellphone

users were “voluntarily” giving third parties their location

data. Id. at 315. Carpenter didn’t “resolve[]” all “preexisting [third-party doctrine] confusions.” Ayesha K.

Rasheed, Personal Genetic Testing and the Fourth

Amendment, 2020 U. ILL. L. REV. 1249 (2020). But it at

least showed that “the third-party doctrine no longer

applies automatically,” LaFave, supra, § 2.7(c).

The Court should grant this petition and make good on

Carpenter’s promise. It should revisit (and overturn)

Miller or, at least, limit dragnet searches under Miller.

7

I.

The Court should grant the petition to

recognize a reasonable expectation of privacy

in financial records.

A. This Court should grant certiorari and apply the

same factors to financial records that it used in Carpenter:

the data’s (1) “deeply revealing nature”; (2) its “depth,

breadth, and comprehensive reach”; and (3) its

“inescapable,” effectively involuntary collection. And in

applying those factors, state jurisprudence can help light

the way forward.

First, federal courts can rely on “state courts” to better

discern the order-liberty balance. Robert J. Delahunty &

John Yoo, Against Foreign Law, 29 HARV. J.L. PUB.

POL’Y 291, 295 (2005). States handle “the vast majority of

criminal prosecutions,” giving them “comparative

expertise in” criminal law and Fourth Amendment-like

issues, People v. McKnight, 446 P.3d 397, 407 (Colo. 2019)

(discussing third-party doctrine). And with non-federal

law-enforcement officers outnumbering federal lawenforcement officers by nearly ten-to-one, States have

more on-the-ground experience in criminal law, too.

Second, state courts have been much quicker than their

federal counterparts to treat Carpenter as a meaningful

advance in the Court’s third-party doctrine. From 2018 to

2021, state courts applying Carpenter found searches

three times more often than federal courts. Matthew

Tokson, The Aftermath of Carpenter: An Empirical

Study of Fourth Amendment Law, 2018-2021, 135 HARV.

L. REV. 1790, 1811-12 (2022) (~60% of the time versus

~20%). This variance is, in part, because state courts

don’t think in terms of Miller’s “broad third-party

doctrine” alone. Matthew Radford, Back to the Future:

Revisiting State Constitutions to Protect Against New

Technological Intrusions, 81 WASH. & LEE L. REV. 1641,

8

1661 (2024); see also Tokson, supra, at 1814 (agreeing

state courts are “less biased in favor of the pre-Carpenter

status quo”).

Third, States have long provided more robust

constitutional protections against unreasonable searches

and seizures in myriad situations. Radford, supra, at

1663-76 (cataloging examples including pole cameras,

recording conversations, reverse keyword searches, drug

dog sniffs, and others); see also Commonwealth v.

Augustine, 4 N.E.3d 846, 858 (Mass. 2014) (noting it

provides “more substantive protection” than the Fourth

Amendment). That more robust approach hews closer to

the Framers’ understanding of the Fourth Amendment.

See Thomas Y. Davies, Recovering the Original Fourth

Amendment, 98 MICH. L. REV. 547, 749 (1999) (“The

authentic history shows that framing-era doctrine

provided a much stronger notion of a ‘right to be secure’

in person and house than does modern doctrine.”).

Applying those factors, the result becomes clear:

Miller was wrong to categorically exclude financial

records from ordinary Fourth Amendment protections.

Indeed, many States reject Miller and constitutionally

protect financial records from warrantless searches. See

generally Stephen E. Henderson, Learning from All Fifty

States: How to Apply the Fourth Amendment and Its

State Analogs to Protect Third Party Information from

Unreasonable Search, 55 CATH. U. L. REV. 373 (2006). “It

cannot be gainsaid,” many States have recognized, that a

person “reasonabl[y]” expects that “the matters he

reveals to the bank,” including his bank “documents” like

checks, will “remain private.” Burrows v. Superior Court,

529 P.2d 590, 593 (Cal. 1974); see also, e.g., Commonwealth

v. DeJohn, 403 A.2d 1283, 1290 (Pa. 1979); Winfield v. Div.

of Pari-Mutuel Wagering, Dep’t of Bus. Regul., 477 So. 2d

9

544, 548 (Fla. 1985); In re May 1991 Will Cnty. Grand

Jury, 604 N.E.2d 929, 937 (Ill. 1992); Schroeder v. Utah

Att’y Gen.’s Off., 358 P.3d 1075, 1081 (Utah 2015); State v.

Andrews, 234 A.3d 1254, 1292 n.7 (N.J. 2020).

State court jurisprudence (and other authorities)

shows that Carpenter’s “privacy and lack-of-free-choice

concerns” apply “equally” to “financial records.” Jeremy

Connell, You Can’t Teach Old Katz New Tricks: It’s Time

to Revitalize the Fourth Amendment, 78 U. MIAMI L.

REV. 171, 221-22 (2023). The Court should grant the

petition and hold the same.

1. Take Carpenter’s first two factors—whether the

information is deeply revealing and how comprehensive it

is. State courts say “discrete” financial information—and

especially a year’s worth of every transaction detail—tells

a great deal about a person’s life. Samson v. State, 919

P.2d 171, 173 (Alaska Ct. App. 1996); State v. Kluss, 867

P.2d 247, 254 (Idaho Ct. App. 1993). Financial records

may look like a mass of undifferentiated “numbers,

symbols, dates, and tables”—“a veritable chronicle of”

otherwise “mundane” fees, deposits, interest, and other

interactions. State v. McAllister, 875 A.2d 866, 874 (N.J.

2005). But “compiled and indexed,” these “individually

trivial transactions take on a far greater significance”—

serving as “detailed financial dossiers,” thoroughly

“memorializ[ing] an individual’s affairs.” Id. (cleaned up).

They show what a “citizen buys, how often, and from

whom”; “what political, recreational, and religious

organizations a citizen supports”; and where the citizen

travels, their affiliations, reading materials, television

viewing habits, financial condition, and more.” State v.

Miles, 156 P.3d 864, 869 (Wash. 2007); see also State v.

Domicz, 907 A.2d 395, 403 (N.J. 2006) (listing many more

categories).

10

Financial records thus “reveal[] many aspects of [a

person’s] personal affairs, opinions, habits and

associations.” Burrows, 529 P.2d at 596. All told, his

“checks, savings, bonds, loan applications, loan

guarantees,” and other details give the bank a “virtual

current biography.” Id.; accord Andrews, 234 A.3d at 1292

n.7 (same); People v. Nesbitt, 938 N.E.2d 600, 605 (Ill. Ct.

App. 2010); State v. Thompson, 810 P.2d 415, 418 (1991)

(same); see also RDT Constr. Corp. v. Contralor I, 141

D.P.R. 424, 442 (1996) (saying financial records reveal

“intimate” “patterns and lifestyles”—including a person’s

occupation, his haunts and goods, his political party and

church, and his reading material and associations).

Cryptocurrency financial records reveal the same. Noah

Lesiuk, Ushering in A New Era: Assessing the

Reasonable

Expectation

of

Privacy

Vis-à-Vis

Cryptocurrency and Blockchain Data, 46 MAN. L.J. 206,

228 (2024) (searching “cryptocurrency storage mediums

… quite obviously uncovers the intimate details of one’s

personal choices and lifestyle”).

Several of this Court’s justices have agreed. As Justice

Kennedy (joined by Justice Thomas and Justice Alito) said

in dissent in Carpenter, “troves of intimate information”

gleanable from “financial records … dwarf[] what can be

gathered from cell-site records.” Carpenter, 585 U.S. at

337. Echoing many state court cases, financial records

reveal people’s purchases, their salaries, their preferred

“political and religious organizations,” their doctors

(including a potential “psychiatrist, plastic surgeon,

abortion clinic, or AIDS treatment center”), and whether

they frequent “gay bars or straight ones.” Id. Decades

earlier, Justice Douglas had said the same: financial

records show a person’s “doctors, lawyers, creditors,

political allies, social connections, religious affiliation,

educational interests, … and so on ad infinitum.” Cal.

11

Bankers, 416 U.S. at 85 (Douglas, J., dissenting). Because

these financial records “touch upon intimate areas of an

individual’s personal affairs,” including their “activities,

associations, and beliefs,” at some point it “implicate[s]

legitimate expectations of privacy.” Id. at 78-79 (Powell,

J., concurring); see also Miller, 425 U.S. at 447-54

(Brennan, J., dissenting) (accepting Burrows).

2. State courts also say that financial records meet

Carpenter’s third factor: involuntary sharing. Carpenter

said CSLI wasn’t “truly ‘shared’” because having a phone

is “indispensable to participation in modern society.”

Carpenter, 585 U.S. at 315. Sharing financial records, too,

“is not entirely volitional” because it’s “impossible to

participate in the economic life of contemporary society

without maintaining a bank account.” Burrows, 529 P.2d

at 596; accord Thompson, 810 P.2d at 418; Nesbitt, 938

N.E.2d at 605. Next to no one could transact all (or even

a fraction) of their business in person and with “cash”—

making financial institutions “indispensable.” McAllister,

875 A.2d at 874. Banking is “necessary to modern

commercial life.” Charnes v. DiGiacomo, 612 P.2d 1117,

1121 (Col. 1980); cf. RDT, 141 D.P.R. at 441 (“resort[ing]

to banking institutions” is “practically a necessity … to

participate adequately in economic life”).

So Miller was wrong to call banking “a true disclosure

to a third party.” Charnes, 612 P.2d at 1121; People v.

Seymour, 536 P.3d 1260, 1272 (Colo. 2023). Disclosing

financial information to third parties is an “inevitable and

inescapable” function of modern society; because there is

“no realistic alternative,” doing so isn’t really “voluntary.”

Walton, 324 P.3d at 906, 908. And if Miller impliedly

suggests that a person should just disconnect from the

grid to shield their privacy interests, then that’s too much

to ask. The Constitution doesn’t require citizens to take

12

“[extra]ordinary” steps to “veil their affairs in secrecy.”

State v. Hinton, 319 P.3d 9, 15 (Wash. 2014); see also Luiza

M. Leão, A Unified Theory of Knowing Exposure:

Reconciling Katz and Carpenter, 97 N.Y.U. L. REV. 1669,

1690 (2022) (saying the Fourth Amendment doesn’t

impose a proactive “duty of secretiveness on individuals”).

Banking online is inescapable, too. As the Fifth Circuit

put it, “[g]iven the ubiquity—and necessity—in the digital

age of entrusting corporations” like banks with our data,

the

third-party

doctrine’s

original

voluntaryrelinquishment theory is “dubious.” United States v.

Smith, 110 F.4th 817, 834-35 (5th Cir. 2024). That we

“need to use” the internet “to meaningfully participate in

society,” Leão, supra, at 1690, means we now leave digital

financial “third-party trails” everywhere, Cásarez, supra,

at 871.

This widespread digitization of commerce

“eviscerat[es]” Miller’s “outdated” reasoning.

Id.

Because “communicating and sharing” our financial

details “through third parties’ technology is a necessary

condition of existence,” Miller is “unsupportable in the big

data surveillance era.” Avidan Y. Cover, Corporate

Avatars and the Erosion of the Populist Fourth

Amendment, 100 IOWA L. REV. 1441 (2015); cf. Tyler

O’Connell, Two Models of the Fourth Amendment and

Hashing to Investigate Child Sexual Abuse Material, 53

U. PAC. L. REV 293, 323-26 (2021) (because third parties

are “the true gatekeepers of” our “personal data,” Miller

“is entirely untenable” and has “lost [its] force in the

digital era”).

B. Other of Miller’s assumptions were wrong, too—

chiefly that voluntarily disclosing certain information for

commercial purposes vitiates all other privacy

expectations. Miller, 425 U.S. at 443. To the contrary,

when individuals disclose sensitive information to an

13

institutional third party, they normally and reasonably

expect the “information will not be disclosed to others for

[extracurricular] purposes.” Walton, 324 P.3d at 906.

There are “some third-party institutions” that deal with

such sensitive information that “sharing private

information in” those sacrosanct “spaces does not

destroy” but confirms “someone’s reasonable expectation

of privacy.” State v. Leonard, 943 N.W.2d 149, 159 (Minn.

2020).

Banks and other financial institutions, for example. A

bank customer does not intend the act of banking itself to

grant permission to reveal the “substance” of his financial

affairs to the world. Charnes, 612 P.2d at 1121; accord

McAllister, 875 A.2d at 874. Indeed, “[d]isclosure of

personal financial information, … instead of benefiting the

industry, would violate the legislatively and judicially

recognized right to privacy of personal financial

information established by Congress when it enacted the

Financial Privacy Act.” Laurie Durcan & Bruce K.

Riordan, Banking Disclosures, Financial Privacy, and

the Public Interest, 6 ANN. REV. BANKING L. 391, 403

(1987).

No doubt sharing financial details with a bank

somewhat diminishes privacy. But just because someone

“has diminished privacy interests does not mean that the

Fourth Amendment falls out of the picture entirely.”

Riley, 573 U.S. at 392. A person may not, for example, be

reasonably entitled to “privacy in his backyard” from

“parents looking for lost” kids even while he is reasonably

entitled to privacy from “policemen making a ‘dragnet’

search of … a whole neighborhood” hoping to “find some

evidence of some crime.” State v. Hempele, 576 A.2d 793,

805 (N.J. 1990). Similarly, even if a bank knows some

things about a customer, it doesn’t follow that the

14

customer “is indifferent to having those affairs …

disclosed to the government.” RICHARD POSNER, THE

ECONOMICS OF JUSTICE 342 (1981).

Miller justified its all-or-nothing approach by saying

governments accessing bank records discover only what

“the bank customer expected bank employees to be aware

of.” LaFave, supra, § 2.7(c). But that’s wrong. Most

often, bank employees see only bits of uncontextualized

information for just a moment. They then may see

hundreds or thousands of other bits of information before

they run across the same account again. That’s especially

true today, when nearly all transactions happen

“remotely” and “without interacting with bank employees

at all.” Connell, supra, at 221. Except in very specific

cases involving an expressly consented-to disclosure—

like, say, applying for a mortgage—individuals don’t

expect that anyone at the bank will have reason or

occasion to make themselves “aware” of all their private

financial interests. Burrows, 529 P.2d at 593 (“A bank

customer’s reasonable expectation is that, absent

compulsion by legal process, the matters he reveals to the

bank will be utilized by the bank only for internal banking

purposes.”).

It only takes a basic exercise to reject Miller’s premise

in the modern world. Imagine a customer discovering that

a random bank employee had plotted out her financial

transactions for the past year, including every purchase

she’d made. She would feel violated—and reasonably so.

We do not expect a bank or its employees to map our

entire financial history. LaFave, supra, § 2.7(c) (saying a

customer would be shocked to discover that her financial

institution or its employees had comprehensively

reviewed her finances to “construct accurate conclusions

about [her] lifestyle”). If anything, this expectation has

15

increased since Miller. See Kevin Johnson, The Use of

Clearview AI to Support Warrants Violates the Fourth

Amendment, 34 FORDHAM INTELL. PROP. MEDIA & ENT.

L.J. 991, 1017 (2024). Indeed, Americans are now “more

resistant to law enforcement access to their financial

records” than access to their “internet use,” “medical

records,” or facial scans. Aditi A. Prabhu, Contracting for

Financial Privacy: The Rights of Banks and Customers

Under the Reauthorized Patriot Act, 39 LOY. U. CHI. L.J.

51, 84 (2007).

Miller has always been wrong; the Court should grant

the petition to say so.

II.

Alternatively, the Court should grant the

petition to clarify that Miller doesn’t extend to

suspect-less dragnet searches.

A. Technology has “[]affected” Fourth Amendment

privacy protections. Kyllo v. United States, 533 U.S. 27,

33-34 (2001). This Court and its justices have warned time

and again that Fourth Amendment jurisprudence must be

technology sensitive. “[T]ime works changes,” Justice

Brandeis said, meaning “[s]ubtler and more far-reaching

means of invading privacy … become available to the

government.” Olmstead v. United States, 277 U.S. 438,

473-74 (1928) (Brandeis, J., dissenting).

The Court therefore “reject[s] … mechanical

interpretation[s] of the Fourth Amendment” that “leave”

citizens “at the mercy of advancing technology” and “take

account of more sophisticated,” developing technology.

Kyllo, 533 U.S. at 36.

A “Fourth Amendment

jurisprudence … so wooden as to ignore” new “techniques

of this electronic age,” Cal. Bankers, 416 U.S. at 95

(Marshall, J., dissenting), would “embarrass the future,”

N.W. Airlines, Inc. v. Minnesota, 322 U.S. 292, 300

16

(1944)). In United States v. Jones, for example, the Court

distinguished between the “practical” protections of “the

precomputer age,” and the necessary “constitutional” and

“statutory” protections of our digital age—an age for

which the third-party doctrine appears “ill-suited.” 565

U.S. 400, 417 (2012). As Riley predicted, the “gulf

between physical practicability and digital capacity” has

“continue[d] to widen.” 573 U.S. at 394. And Carpenter

rejected arguments that “fail[ed] to contend with the

seismic shifts in digital technology.” 585 U.S. at 313.

Today’s technology mixed with today’s third-party

doctrine produces a hazardous cocktail. It exposes

citizens to the very real “danger of dragnet-style

government mass surveillance.” Alex Brown, DerivativeConsent Doctrine and Open Windows: A New Method to

Consider the Fourth Amendment Implications of Mass

Surveillance Technology, 66 CASE W. RES. L. REV. 261,

279 (2015); accord PRINCIPLES OF THE LAW, POLICING

§ 2.05 (AM. LAW. INST., Tentative Draft No. 3, 2021). In

the past, practical impossibilities might’ve prevented

dragnet sweeps at the scale seen here. The burden of

conducting one would at least provide a substantial

disincentive. No more.

Three socio-technological “advance[ments]” in have

increased the danger of abusive dragnets through use of

the third-party doctrine, V. Alexander Monteith, Cell Site

Location Information: A Catalyst for Change in Fourth

Amendment Jurisprudence, 27 KAN. J.L. & PUB. POL’Y

82, 102 (2017): pervasive data collection (especially

through the internet of things); cloud-based data storage;

and data processing through artificial intelligence and

quantum computing.

Data collection. “Today we use the Internet to do most

everything,” meaning “[c]ountless Internet companies”

17

collect our data. Carpenter, 585 U.S. at 387 (Gorsuch, J.,

dissenting). Increasingly, Americans are surrounded by a

legion of “helpful” devices: smartphones and their myriad

applications, smart watches, smart appliances, smart

home fixtures, Alexas, air pods, fitbits, in-car information

systems, and on and on. And we deploy this artificial

intelligence-driven internet-of-things technology to do

everything from exercise to keep our schedule to “us[e] a

digitally stored credit card at a store or online.” Gelb,

supra, at 31 (saying in 2020 every second each American

generated 1.7 megabytes—or 1,000 text pages—of

electronically stores information). Largely “unbeknownst

to the user,” id., these devices collect “a great deal of

information about” users and transmit it “to third parties

in the course of carrying out mundane tasks. Jones, 565

U.S. at 417 (Sotomayor, J., concurring).

So the data piles up. Even ten years ago, “more data

[had] been created in the [previous] two years than in the

entire previous history of the human race.” Bernard

Marr, Big Data: 20 Mind-Boggling Facts Everyone Must

Read, FORBES (Sept. 30, 2015), https://tinyurl.com/

36j7nx6w. And the pace of collection has only been

quickening post-pandemic.

Data storage. Companies have, of course, maintained

“detailed records of individuals’ personal information” for

decades. Daniel J. Solove, Data Mining and the SecurityLiberty Debate, 75 U. CHI. L. REV. 343, 357 (2008). But as

Riley recognized, we “now live in the world of the cloud.”

David A. Harris, Riley v. California and the Beginning of

the End for the Third-Party Search Doctrine, 18 U. PA. J.

CONST. L. 895, 898-99 (2016). That allows the storage of

formerly unthinkable quantities of data that “is, by its

very nature, conveyed to and possessed by third parties.”

Id. Today, people don’t keep papers and effects at home

18

but online; they go to hospitals and doctors’ offices rather

than receiving home visits; and they use “bankintermediated transactions” rather than pay directly—all

of which generates functionally permanent records in the

cloud. LaFave, supra, § 2.7(c). Bank records, for

example, are now being “stored for longer” and in greater

numbers “than ever before.” Winters, supra, at 1384.

Especially as data has become a valuable commodity (and

storage has become cheap), companies have every

incentive to retain as much data as possible for as long as

possible. And they do.

Data processing. Even in the 1970s, States were

warning that the analytical power of new technology like

“computers” had “accelerated” surveillance capabilities,

and privacy jurisprudence “must keep pace.” Burrows,

529 P.2d at 593. And “the advent of high-speed

computers” made it “[]conceivable” to conduct dragnet

searches with “unimaginable” “potential for invasions of

privacy.” Clapper, 785 F.3d at 824. Today we have

“Quantum AI”—which combines the “principles of

quantum mechanics,” like “superposition,” with “the

pattern recognition and learning capabilities of artificial

intelligence.” Bernard Marr, The Next Breakthrough In

Artificial Intelligence: How Quantum AI Will Reshape

Our

World,

FORBES

(Oct.

8,

2024),

https://perma.cc/4UJG-KHLM. This “fusion” creates

“the ability to analyze vast amounts of data, recognize

complex patterns, and make predictions with a level of

accuracy and speed that was previously thought

impossible.” Id.

Given these shifts, a tech-blind third-party doctrine

like the one the First Circuit used below erases any

“meaningful” Fourth Amendment protection. Henderson,

supra, at 412. Just consider a few categories of

19

information not yet discussed that governments already

have or could acquire under the third-party doctrine:



Ad network profile databases, Elspeth A. Brotherton,

Big Brother Gets A Makeover: Behavioral Targeting

and the Third-Party Doctrine, 61 EMORY L.J. 555, 571

(2012);



Dating-app and smart-home-device data, Tokson,

supra, at 1849;



“[M]etadata,” “internet search history,” and “hotel

guest registries,” Adam Lamparello, City of Los

Angeles v. Patel: The Upcoming Supreme Court Case

No One Is Talking About, 20 TEX. J. C.L. & C.R. 135,

138 (2015);



All “commercial data,” Carrie Leonetti, A Grand

Compromise for the Fourth Amendment, 12 J. BUS. &

TECH. L. 1, 10 (2016);



“[A]pp permissions” data, Michael Gentithes, App

Permissions and the Third-Party Doctrine, 59

WASHBURN L.J. 35, 42 (2020);



DNA tests, Catherine Arcabascio, A Genetic

Surveillance State: Are We One Buccal Swab Away

from A Total Loss of Genetic Privacy?, 63 HOW. L.J.

117, 152 (2020); and



Functionally every form of health data, Rhea Bhatia,

A Loophole in the Fourth Amendment: The

Government’s Unregulated Purchase of Intimate

Health Data, 98 WASH. L. REV. ONLINE 67, 100 (2024).

Too often, these and other examples of law

enforcement “data mining” become a pure “fishing

expedition” in which the government casts “a giant net to

see what” (or who) they can catch. Solove, supra, at 357.

20

The frequent “positioning of [a] data company as a sort of

information processing plant makes it a very attractive

source of information for government investigators.”

Ishan Kumar, The Fourth Party Doctrine: Regulating

Big Data with an Inference-Based Approach, 105

CORNELL L. REV. ONLINE 94, 108 (2020). And as in

Carpenter, these “newfound” searching “capacit[ies] run[]

against everyone” at once. 585 U.S. at 312. The

government “need not even know in advance whether” it

wants to investigate “a particular individual.” Id. So these

are variations on the Founding Era’s much-hated general

warrants. Solove, supra, at 357. They’re a “sweeping

nullification” of the Constitution’s promises. Connell,

supra, at 209.

When governments can freely “circumvent” the

Fourth Amendment “and legally conduct … millions of

general fishing expeditions,” Brotherton, supra, at 571,

ranging across every conceivable data category, it’s

difficult to see how the Fourth Amendment stays

“[]relevant,” Jane R. Bambauer, Filtered Dragnets and

the Anti-Authoritarian Fourth Amendment, 97 S. CAL. L.

REV. 571, 608 (2024); cf. In re Under Seal, 749 F.3d 276,

280 (4th Cir. 2014) (affirming government’s seizure of

encryption keys that exposed “400,000-plus email users”).

What’s worse, these dragnet searches implicate other

constitutional protections. Today, it’s “impracticable” to

“exchange ideas or information without revealing

information to third parties.” Deepali Lal, Criminal

Procedure-Technology in the Modern Era, 43 U. ARK.

LITTLE ROCK L. REV. 519, 540 (2021). So the third-party

doctrine allows people to be targeted for exercising First

Amendment freedoms.

Solove, supra, at 357-58;

Brotherton, supra, at 589-90. Recognizing as much,

potential targets might “self-censor[] [their] speech and

21

sometimes forgo[] electronic communications in response

to [dragnet] surveillance.” Wikimedia Found. v. Nat’l

Sec. Agency, 857 F.3d 193, 211 (4th Cir. 2017). Here, that

chilling effect isn’t limited to the 14,355 Coinbase users

alone. Once the IRS gets “the identity of some wallet

owners,” it could “use these known nodes in the system to

build a ‘transaction graph’ that tracks each particular”

sale, exposing “the identity of owners of unknown wallets

with which the known wallets transacted.” Omri Marian,

A Conceptual Framework for the Regulation of

Cryptocurrencies, 82 U. CHI. L. REV. DIALOGUE 53, 57

(2015). This six-degrees-of-separation spillover effect is

just one of many unintended and constitutionally

problematic consequences flowing from digital-age

dragnet searches.

B. But a partial solution is ripe for the taking: limit

Miller’s third-party doctrine to suspect-specific searches.

No dragnets, no fishing expeditions, no forcing 14,355

citizens to undergo a random digital-financial-records

strip search. If law enforcement personnel continue to

wield Miller’s nigh-boundless investigative power, that

power should be limited to identified suspects. Even the

third-party doctrine’s strongest present advocate,

Professor Orin Kerr, agrees that something like this could

be a reasonable limitation. See Orin S. Kerr, Digital

Evidence and the New Criminal Procedure, 105 COLUM.

L. REV. 279, 309 (2005).

While such a limitation would depart from Miller’s

absolutist holding, it would square with Miller’s facts,

which are nothing like digital dragnets. After all, a crimeless, unparticularized search of a year’s worth of

comprehensive financial activity for 14,355 people “bears

little resemblance to” the crime-specific, single-person

search of a few months’ worth of some checks and

22

statements “considered in” Miller. Riley, 573 U.S. at 386;

accord Nathan F. Wessler & Max Behrman, Challeging

the Warrantless Bulk Surveillance of Money Transfer

Records, 47 CHAMPION 42, 45 (May 2023). As Riley put it,

searching someone’s pockets is qualitatively different

from “ransacking his house.” 573 U.S. at 396. Suspecting

someone “tucked a paper bank statement in a pocket does

not justify a search of every bank statement from the last

five years.” Id. at 400. But this case is even worse than

Riley’s hypothetical because the IRS doesn’t suspect any

digital “tucking”; it ran its invasive dragnet search with

zero identified suspicions. Because these facts are

“materially distinguishable from” Miller and its progeny,

they do not justify “the dragnet communications

surveillance now at issue.” Strossen, supra, at 1150; see

also Wessler, supra, at 45 (saying there is no justification

to “extend[]” the third-party “to the sort of bulk [financialrecords] surveillance occurring here”).

Finally, forbidding Miller dragnet searches would be

consistent with the principle that searches must “be as

limited as possible.” Coolidge v. New Hampshire, 403

U.S. 443, 467 (1971). A “general, exploratory rummaging

in a person’s belongings” resurrects the “the specific evil”

so “abhorred by the colonists”—the general warrant. Id.

States detest “general exploratory searches,” too. State v.

Olsen, 399 P.3d 1141, 1149-50 (2017) (calling them

unconstitutional “fishing expedition[s]”); State v.

Clampitt, 364 S.W.3d 605, 613 (Mo. Ct. App. 2012)

(forbidding government “fishing expeditions” into one

suspect’s text messages); accord State v. Baker, 903

N.W.2d 469, 479 (Neb. 2017); State v. Biery, 314 P.3d 900

(Kan. Ct. App. 2013). And while dragnet searches are

about as close to general warrants as possible in 2025,

general warrants and writs of assistance are “puny

instruments” compared to the power of a digital dragnet

23

search. Brotherton, supra, at 599. Under a properly

balanced Fourth Amendment jurisprudence, “law

enforcement” would not be allowed “to rummage through

troves of location data from” thousands of people “without

any description of the particular suspect or suspects to be

found.” Smith, 110 F.4th at 837-38; accord Bambauer,

supra, at 233.

***

The exact “scope of the third-party doctrine in the

digital age”—and how far the Court will let it drift towards

“limitless” surveillance—has been an “issue lurking

underneath the surface.” Lamparello, supra, at 139. This

Court said 40 years ago that there would “be time enough”

to address “dragnet type law enforcement practices”

whenever they “eventually occur[ed].” United States v.

Knotts, 460 U.S. 276, 284 (1983). That time is now.

The First Circuit’s absolutist third-party doctrine

would allow “[m]assive,” functionally unlimited

government fishing expeditions. William S. Fallon,

Imperfect Protection Against Perfect Enforcement: When

Procedure Is Not Enough, 57 CONN. L. REV. 279, 296

(2024). The Court should grant the petition to clarify that

Miller does not authorize IRS-style, 14,355-person

dragnet searches.

CONCLUSION

The Court should grant the petition.

24

Respectfully submitted.

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

FRANKIE DAME

Assistant Solicitor General

Counsel for Amicus Curiae State of West Virginia

25

ADDITIONAL COUNSEL

KRIS KOBACH

Attorney General

State of Kansas

MICHAEL T. HILGERS

Attorney General

State of Nebraska

DREW WRIGLEY

Attorney General

State of North Dakota

DAVE YOST

Attorney General

State of Ohio