Amicus Curiae Brief — National Small Business United, dba National Small Business Association, et al., Petitioners v. Scott Bessent, Secretary of the Treasury, et al.

NO. 25-1201

In the

Supreme Court of the United States

NATIONAL SMALL BUSINESS UNITED, D/B/A

NATIONAL SMALL BUSINESS ASSOCIATION, ET AL.,

Petitioners,

v.

SCOTT BESSENT, SECRETARY OF THE TREASURY, ET AL.,

Respondents.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

BRIEF OF AMICI CURIAE

SMALL BUSINESS ASSOCIATION OF MICHIGAN

AND CHALDEAN CHAMBER OF COMMERCE

IN SUPPORT OF PETITIONERS

Stephen J. van Stempvoort

Counsel of Record

D. Andrew Portinga

Amanda L. Rauh-Bieri

MILLER JOHNSON

45 Ottawa Avenue SW, Suite 1100

Grand Rapids, MI 49503

(616) 831-1700

vanstempvoorts@millerjohnson.com

May 21, 2026

SUPREME COURT PRESS

Counsel for Amici Curiae

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF THE AMICI CURIAE ....................... 1

INTRODUCTION AND SUMMARY

OF THE ARGUMENT ......................................... 3

ARGUMENT ............................................................... 4

I.

The CTA Violates the Fourth Amendment ..... 4

A. The CTA’s Disclosure Requirements

Are a Search for Purposes of the

Fourth Amendment ................................... 4

1. The CTA Effects a Search Under

the Property-Based Test ....................... 4

2. The CTA Intrudes on Entities’ and

Individuals’ Reasonable Expectations

of Privacy ............................................... 6

3. The Third-Party Doctrine Does Not

Apply ...................................................... 7

B. The Government Failed to Demonstrate

That Any Exception to the Warrant

Requirement Applies .................................. 9

C.

Shultz Does Not Rescue the CTA ............ 11

1. Shultz Does Not Broadly Authorize

Reporting Requirements ..................... 12

2. Shultz Does Not Permit Suspicionless

Searches as Long as They Are

Nondiscretionary and “Limited” ......... 13

3. The Disclosure Regime in Shultz

Was Much Narrower Than the Disclosure Regime Mandated by the CTA .... 16

ii

TABLE OF CONTENTS (Cont.)

Page

a. Shultz Compelled Disclosure

Only of Transactions That Were

Suspicious ......................................... 16

b. The Disclosures Compelled in

Shultz Were Much More Limited

than the Disclosures Compelled by

the CTA ............................................. 18

c.

Shultz Involved Pervasively

Regulated Entities ............................ 19

II. The Eleventh Circuit’s Holding Will Have

Profound Effects If It Is Not Corrected ......... 20

A. The Eleventh Circuit’s Anemic View of

the Fourth Amendment Will

Fundamentally Change How Law

Enforcement Agencies Can Investigate

and Prosecute U.S. Citizens ................... 20

B. Allowing the Government to Force

Private Information from U.S. Citizens

So That They Can Be Prosecuted with

It Is an Invitation for Abuse ..................... 22

CONCLUSION.......................................................... 25

iii

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

Airbnb, Inc. v. City of New York,

373 F. Supp. 3d 467

(S.D.N.Y. 2019) ...................... 5, 11, 13, 16, 20, 21

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ........................................... 17

Brock v. Emerson Elec. Co., Elec. & Space Div.,

834 F.2d 994 (11th Cir. 1987) ......................... 5, 6

Byrd v. United States,

584 U.S. 395 (2018) ................................... 4, 7, 18

California Bankers Association v. Shultz,

416 U.S. 21 (1974) .................... 3, 9, 12, 13, 15-20

Carpenter v. United States,

585 U.S. 296 (2018) ..................................... 14, 16

Chandler v. Miller,

520 U.S. 305 (1997) ............................................. 9

City of Indianapolis v. Edmond,

531 U.S. 32 (2000) ................................. 10, 14, 15

City of Los Angeles v. Patel,

576 U.S. 409 (2015) ............................. 4, 9, 11, 13

Ferguson v. City of Charleston,

532 U.S. 67 (2001) ............................................. 10

Free Speech Coalition, Inc. v. Att’y Gen. United

States, 825 F.3d 149 (3d Cir. 2016)......... 6, 11, 19

G.M. Leasing Corp. v. United States,

429 U.S. 338 (1977) ............................................. 5

Hale v. Henkel,

201 U.S. 43 (1906) ............................................... 5

iv

TABLE OF AUTHORITIES (Cont.)

Page

Heidi Grp., Inc. v. Texas Health & Hum. Servs.

Comm’n, 138 F.4th 920 (5th Cir. 2025) ............ 11

Katz v. United States,

389 U.S. 347 (1967) ............................................. 6

Kyllo v. United States,

533 U.S. 27 (2001) ............................................. 16

Marshall v. Barlow’s, Inc.,

436 U.S. 307 (1978) ....................................... 5, 18

Michigan v. Tyler,

436 U.S. 499 (1978) ........................................... 10

Naperville Smart Meter Awareness v. City of

Naperville, 900 F.3d 521 (7th Cir. 2018) ............ 8

Olmstead v. United States,

277 U.S. 438 (1928) ....................................... 5, 21

Patel v. City of Los Angeles,

738 F.3d 1058 (9th Cir. 2013) ............................. 8

Silverthorne Lumber Co. v. United States,

251 U.S. 385 (1920) ............................................. 5

Skinner v. Ry. Lab. Executives’ Ass’n,

489 U.S. 602 (1989) ....................................... 9, 10

Small Bus. Ass’n of Michigan v. Yellen,

769 F. Supp. 3d 722

(W.D. Mich. 2025) ............ 2, 3, 4, 5, 16, 19, 21, 24

Smith v. Maryland,

442 U.S. 735 (1979) ............................................. 7

Terry v. Ohio,

392 U.S. 1 (1968) ............................................... 17

v

TABLE OF AUTHORITIES (Cont.)

Page

United States v. Di Re,

332 U.S. 581 (1948) ........................................... 21

United States v. Miller,

425 U.S. 435 (1976) ....................................... 7, 12

United States v. Morton Salt Co.,

338 U.S. 632 (1950) ............................................. 4

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ...... 2-6, 9, 12-16, 18, 20, 21, 24

STATUTES

26 U.S.C. § 6103(i)(1)(A) ............................................. 9

31 U.S.C. § 5336, Corporate Transparency Act 10, 11,

............................................... 13, 15-19, 21, 22, 24

31 U.S.C. § 5336(a)(3)(A) ............................................ 6

31 U.S.C. § 5336(a)(5) ............................................... 10

31 U.S.C. § 5336(b)(1)(A) .......................................... 10

31 U.S.C. § 5336(c)(2)(B)(ii) ............................ 8, 11, 22

JUDICIAL RULES

Sup. Ct. R. 37.2 ........................................................... 1

REGULATIONS

87 Fed. Reg. 59498 ...................................................... 2

87 Fed. Reg. 59504 .................................................... 21

87 Fed. Reg. 59505 .................................................... 22

87 Fed. Reg. 59573 ...................................................... 2

vi

TABLE OF AUTHORITIES (Cont.)

Page

OTHER AUTHORITIES

Bogage, Jacob, et al.,

IRS improperly disclosed confidential

immigrant tax data to DHS, THE

WASHINGTON POST (Feb. 11, 2026),

https://www.washingtonpost.com/business

/2026/02/11/ immigrants-irs-dhs-tax-data/ ....... 23

Electronic Frontier Foundation,

Newly Public FISC Opinion is The Best

Evidence For Why Congress Must End

Section 702 (May 23, 2023),

https://www.eff.org/deeplinks/2023/05/new

ly-public-fisc-opinion-best-evidence-whycongress-must-end-section-702 ......................... 23

Greenberg, Andy,

The Year of the Mega Data Breach,

FORBES (Nov. 24, 2009),

https://www.forbes.com/

2009/11/24/security-hackers-datatechnology-cio-network-breaches.html ............. 24

Kanno-Youngs, Zolan and Sanger, David E.,

Border Agency’s Images of Travelers

Stolen in Hack, N.Y. TIMES (Jun. 10,

2019), https://www.nytimes.com/

2019/06/10/us/politics/ customs-databreach.html........................................................ 24

vii

TABLE OF AUTHORITIES (Cont.)

Page

Kornfield, Meryl, et al.,

Whistleblower claims ex-DOGE member

says he took Social Security data to new

job, THE WASHINGTON POST (Mar. 10,

2026), https://www.washingtonpost.com/

politics/2026/03/10/social-security-databreach-doge-2/.................................................... 23

Stephanie K. Pell, et al.,

Privacy under siege: DOGE’s one big,

beautiful database, Brookings Institution

(June 25, 2025),

https://www.brookings.edu/

articles/privacy-under-siege-doges-onebig-beautiful-database/ (discussing

impetus for federal Privacy Act) ....................... 23

1

INTEREST OF THE AMICI CURIAE1

The SMALL BUSINESS ASSOCIATION OF MICHIGAN

(“SBAM”) is a statewide organization for small business owners in Michigan, with over 32,000 members.

SBAM’s mission is the success of Michigan’s small

businesses, and it frequently advocates on public

policy issues affecting small business owners.

The CHALDEAN AMERICAN CHAMBER OF COMMERCE

(the “Chaldean Chamber”) advocates and promotes

small businesses and economic opportunities, particularly for businesses and individuals who are affiliated

with the Chaldean-American community. Chaldeans

are Aramaic-speaking, Eastern-Rite Catholics indigenous to Iraq. More than 4,000 businesses are members

of the Chaldean Chamber.

Amici’s interest in this case arises from their

concerns regarding the Corporate Transparency Act’s

impact on small businesses. The CTA requires millions

of law-abiding Americans, including SBAM’s and the

Chaldean Chamber’s members, to report sensitive,

private information to law enforcement without any

suspicion of wrongdoing.

1 No counsel for a party authored this brief in whole or in part,

and no party or counsel for a party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amici curiae or its counsel made a monetary

contribution to its preparation or submission. As required by

Supreme Court Rule 37.2, counsel of record received timely

notice of amici’s intent to file this brief at least 10 days prior to

its due date.

2

The CTA substantially impacts amici’s members.

FinCEN estimates that each reporting company’s cost

of filing the initial beneficiary ownership interest

report will range from $85.14 to $2,614.87.2 Based on

those estimates, the total cost of compliance for

SBAM’s 32,000 members will be between roughly $2.5

million and $78.4 million, and the total cost of compliance for the Chaldean Chamber’s 4,000 members will

be between approximately $340,000 and $10.5 million.

On a national scale, FinCEN estimates that the cost

of compliance will be about $21.7 billion in 2024 and

around $3.3 billion each year afterward.3

Because of these and other concerns, amici and

other plaintiffs filed a constitutional challenge to the

CTA in the U.S. District Court for the Western District

of Michigan. The district court ruled in amici’s favor,

finding that the CTA violated the Fourth Amendment. See Small Bus. Ass’n of Michigan v. Yellen, 769

F. Supp. 3d 722 (W.D. Mich. 2025).

2 See Beneficial Ownership Information Reporting Requirements

for Financial Crimes Enforcement Network (FinCEN), 87 Fed. Reg.

59498, 59573 (Jan. 1, 2024), available at https://www.federalregister.

gov/d/2022-21020/p-958.

3 See id.

3

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

The Corporate Transparency Act (“CTA”) compels

millions of individuals and entities to divulge their

private information to the Financial Crimes Enforcement Network (“FinCEN”) so that law enforcement

officers can rummage through it for evidence of

criminal activity, without any suspicion that anyone

in particular has committed a crime. Neither the

government nor the lower courts dispute that the

CTA’s disclosure obligations are a Fourth Amendment

search. The Eleventh Circuit nevertheless ruled that

California Bankers Association v. Shultz, 416 U.S. 21

(1974), not only is a stand-alone exception to the warrant

requirement but also applies to the CTA. The court

held that the government can subject millions of lawabiding people to invasive searches of private information, even though the government’s primary purpose is

to obtain evidence in support of a criminal investigation.

Although the Eleventh Circuit’s holding directly

conflicts with Small Business Association of Michigan

v. Yellen (SBAM), 769 F. Supp. 3d 722 (W.D. Mich.

2025), which invalidated the CTA on Fourth Amendment

grounds, the Eleventh Circuit never addressed that case.

And the implications of the Eleventh Circuit’s ruling

are significant. If the CTA’s mandatory, suspicionless

searches are acceptable under Shultz, then governments may compel the involuntary disclosure of private

information from every citizen in the United States

for criminal investigation purposes without suspicion

4

merely by characterizing the disclosure as a “reporting

requirement.” Upholding the CTA would fundamentally change the way in which the government collects

information about American citizens and uses it

against them. The petition should be granted.

ARGUMENT

I.

The CTA Violates the Fourth Amendment.4

A. The CTA’s Disclosure Requirements Are

a Search for Purposes of the Fourth

Amendment.

Although everyone agrees that the CTA’s compelled

disclosures are Fourth Amendment “searches,” the

Eleventh Circuit’s analysis underappreciated the nature

of the search at issue. The Fourth Amendment “is not

confined literally to searches and seizures as such, but

extends as well to the orderly taking under compulsion

of process,” including disclosures that are compelled

by statute or regulation. United States v. Morton Salt

Co., 338 U.S. 632, 651-52 (1950); see also City of Los

Angeles v. Patel, 576 U.S. 409, 412 (2015).

1. The CTA Effects a Search Under the

Property-Based Test.

The “traditional” understanding of the Fourth

Amendment is a property-based one. Byrd v. United

States, 584 U.S. 395, 403 (2018). Under that property4 Although amici agree with petitioners that the CTA is flawed

on Commerce Clause grounds, the focus of this brief is on the

Fourth Amendment. See SBAM, 769 F. Supp. 3d at 722.

5

based approach, the CTA effects a Fourth Amendment

search because it mandates the disclosure of information that belongs to the reporting entities or their

beneficial owners. SBAM, 769 F. Supp. 3d at 730-33.

The CTA compels entities to disclose the identity of

individuals who have “substantial control” over them

—that is, to reveal the internal power dynamics of

those entities. That corporate information belongs to

those entities and individuals. Hale v. Henkel, 201

U.S. 43, 76 (1906) (corporate records are “papers” for

purposes of the Fourth Amendment). And both individuals and corporate entities possess robust Fourth

Amendment rights over their property and records.

Silverthorne Lumber Co. v. United States, 251 U.S.

385, 392 (1920); accord G.M. Leasing Corp. v. United

States, 429 U.S. 338, 353 (1977). “To hold otherwise

would belie the origin of that Amendment,” which

derived its core protections from the colonists’ experience

with British harassment of “merchants and businessmen . . . ” Marshall v. Barlow’s, Inc., 436 U.S. 307, 31112 (1978).

It makes no difference that law enforcement

agents do not physically arrive on reporting entities’

premises and take photographs of corporate ledgers.

See Airbnb, Inc. v. City of New York, 373 F. Supp. 3d

467, 482-83 (S.D.N.Y. 2019) (collecting cases). The

Fourth Amendment cannot be sidestepped by forcing

entities and individuals to transcribe the most salient

portions of their “papers” into a database, so long as

the government leaves the physical documents in the

entity’s possession. Brock v. Emerson Elec. Co., Elec.

& Space Div., 834 F.2d 994, 996 (11th Cir. 1987); see

also Olmstead v. United States, 277 U.S. 438, 474-75

(1928) (Brandeis, J., dissenting).

6

2. The CTA Intrudes on Entities’ and

Individuals’ Reasonable Expectations

of Privacy.

The CTA’s required disclosures are a Fourth

Amendment search under the “reasonable expectation

of privacy” test, as well. Katz v. United States, 389 U.S.

347, 360 (1967) (Harlan, J., concurring). A privacy

interest “normally attaches to commercial information.” Brock, 834 F.2d at 996. “[A]n individual in a

business office,” just like “a person in a telephone

booth,” is entitled to assume that his or her private

conversations and decisions “will not be broadcast to

the world.” Katz, 389 U.S. at 352; see also Free Speech

Coalition, Inc. v. Att’y Gen. United States, 825 F.3d

149, 168 (3d Cir. 2016).

Disclosing whether someone exercises “substantial

control” over a corporate entity reveals information

internal, and private, to that entity. A corporate

entity’s “arrangements,” “understandings,” “relationships,” and other “direct” and “indirect” decisionmaking mechanisms for running the organization,

31 U.S.C. § 5336(a)(3)(A), are not aired publicly in the

normal course of the entity’s affairs. They happen

within that corporate entity—privately—and their

disclosure under the CTA requires the entity to reveal

important and otherwise non-public information about

its operations.

The CTA’s definitions of “ownership” and “substantial control” require disclosures that extend far beyond

existing ownership interests. The CTA, for example,

requires disclosure of contingent future ownership

interests, such as option agreements, warrants, or

convertible notes. (FinCEN FAQ D.4, available at

https://www.fincen.gov/boi-faqs#D_4). None of that infor-

7

mation is publicly available. And there are many reasons

why an entity might wish to keep this information

private. Public knowledge that a particular venture is

(or is not) backed by either a famous or an infamous

public figure, for example, might affect the company’s

ability to enter into certain contracts or arrangements.

Or the entity might be concerned that a particular

individual’s involvement, if known, could invite political

retaliation or increased (and perhaps unjustified)

scrutiny from law enforcement.

The Eleventh Circuit’s notion that American

citizens have only modest expectations of privacy in

their corporate records fails to appreciate that small

business owners are not obligated to share this information with anyone outside the company. Byrd held

that even an unauthorized driver of a rental car has a

reasonable expectation of privacy in the vehicle by

virtue of his ability to exclude carjackers from the

vehicle. Byrd, 584 U.S. at 407. A corporate entity

possesses the far more potent ability to exclude all

individuals who are outside the company from being

privy to its internal dynamics.

3. The Third-Party Doctrine Does Not

Apply.

The third-party doctrine plays no role in this

case. The paradigmatic third-party cases involve law

enforcement agents attempting to obtain data from

third parties, such as banks or telecommunications

companies, about target individuals who have voluntarily disclosed data to those third parties. See United

States v. Miller, 425 U.S. 435, 443 (1976); Smith v.

Maryland, 442 U.S. 735, 737 (1979). Here, by contrast,

the CTA compels disclosure of information not from

third parties but directly from the target individual or

8

entity itself. See Naperville Smart Meter Awareness v.

City of Naperville, 900 F.3d 521, 527 (7th Cir. 2018)

(doctrine did not apply when “[t]here is no third party

involved . . . ”).

Nor is it true that all of the information that the

CTA demands is already disclosed elsewhere. The

government may be able to obtain from other sources

(1) a publicly available list of all of the corporate entities

registered in a particular state and (2) a list of all

passport numbers that have been issued to any U.S.

citizen. But the CTA compels self-reporting of the

relationship between those two categories of information. And that is the whole point of the CTA. As the

government has insisted, without the CTA, federal law

enforcement agencies will be unable to close the gap

and will be unable to link specific individuals to specific entities. That alone demonstrates both that the

relevant information has not actually been disclosed

to any third party and that the plaintiffs reasonably

expect it to remain private. See Patel v. City of Los

Angeles, 738 F.3d 1058, 1062 (9th Cir. 2013) (“[I]f the

records were publicly accessible, the police of course

would not need to rely on [the ordinance] to gain access

to them.”).

Tax returns do not reveal all individuals who may

have “substantial control” over an entity, either. Some

of those individuals may not have a formal economic

interest in the entity. In other cases, a corporation’s

shareholders may comprise other corporations, such

that its tax filings do not disclose the identity of individuals. In no event, moreover, does an entity expect that

its records or ownership information will be provided

to foreign intelligence services without court oversight,

as the CTA permits. 31 U.S.C. § 5336(c)(2)(B)(ii). In fact,

9

even federal prosecutors ordinarily may not obtain tax

return information from the IRS for use in criminal

investigations unless they first obtain a court order

from a federal judge. See 26 U.S.C. § 6103(i)(1)(A).

B. The Government Failed to Demonstrate

That Any Exception to the Warrant

Requirement Applies.

Despite acknowledging that the CTA effects a

Fourth Amendment search, the Eleventh Circuit

pivoted directly to Shultz instead of identifying any

recognized exception to the warrant requirement. But

“searches conducted outside the judicial process, without

prior approval by a judge or a magistrate judge, are

per se unreasonable . . . subject only to a few specifically

established and well-delineated exceptions.” Patel, 576

U.S. at 419-20 (cleaned up). “This rule applies to commercial premises as well as to homes.” Id. (quotation

omitted). And Shultz is not on any list of the “specifically established” or “well-delineated” exceptions to

the warrant requirement. Id. at 419; see also Chandler

v. Miller, 520 U.S. 305, 309 (1997) (exceptions must be

narrowly construed).

The Eleventh Circuit skipped the required analysis

for a simple reason: none of the acknowledged exceptions to the warrant requirement apply. The primary

exception that the government has relied on in other

CTA lawsuits is the “closely guarded” special needs

exception (otherwise known as the administrative

search exception). Chandler, 520 U.S. at 309. This exception applies only when “special needs, beyond the normal

need for law enforcement, make the warrant and

probable-cause requirement impracticable.” Skinner

v. Ry. Lab. Executives’ Ass’n, 489 U.S. 602, 619 (1989).

The purpose behind the search is key. Even if a check-

10

point program is operated in a uniform and nondiscretionary manner, this Court has “never approved

a checkpoint program whose primary purpose [is] to

detect evidence of ordinary criminal wrongdoing.” City

of Indianapolis v. Edmond, 531 U.S. 32, 41 (2000).

That rule dooms any attempt to fit the CTA into

the “special needs” exception. The sole justification for

the CTA is the “normal need for law enforcement”:

namely, to obtain information helpful for criminal

prosecution. Skinner, 489 U.S. at 619. The government

has repeatedly asserted that the CTA was intended to

fill a gap in its ability to detect and prosecute financial

crime. The disclosure must be made directly to the

“Financial Crimes Enforcement Network.” 31 U.S.C.

§ 5336(a)(5), (b)(1)(A). And the purpose of collecting

individuals’ “sensitive” data under the CTA is solely to

build a financial-intelligence database that law enforcement agencies may access to aid their criminal investigations. 31 U.S.C. § 5336 note (6).

Because the express purpose of the CTA is to

assist ordinary criminal law enforcement, the “special

needs” doctrine does not apply. Ferguson v. City of

Charleston, 532 U.S. 67, 80 (2001). Whenever a statute

authorizes searches “primarily for the ordinary enterprise of investigating crimes,” then either a warrant or

—at minimum—individualized suspicion is necessary.

Edmond, 531 U.S. at 44. Even if a search begins as an

administrative search, once officers begin to “search[ ]

for evidence of crime,” they need a warrant. Michigan

v. Tyler, 436 U.S. 499, 512 (1978). Under the CTA,

however, there is no administrative search; officers

are searching for evidence of crime from the beginning.

The CTA lacks the other hallmarks of a permissible

administrative search, too. To begin with, the doctrine

11

applies only to certain “pervasively regulated” industries.

Id. at 424. An industry is pervasively regulated if it

has “such a history of government oversight that no

reasonable expectation of privacy could exist.” Free

Speech Coalition, 825 F.3d at 169. This Court has

applied this “narrow exception” to only four industries:

“liquor sales”; “firearms dealing”; “mining”; and “running

an automobile junkyard.” Patel, 576 U.S. at 424. The

CTA, by contrast, is not limited to any industry—

pervasively regulated or not.

Moreover, “in order for an administrative search

to be constitutional, the subject of the search must be

afforded an opportunity to obtain pre-compliance review

before a neutral decisionmaker.” Patel, 576 U.S. at 420;

see also Heidi Grp., Inc. v. Texas Health & Hum. Servs.

Comm’n, 138 F.4th 920, 933 (5th Cir. 2025) (“[T]he

government must usually obtain a subpoena before

accessing a corporation’s books and records.”). The CTA

not only compels disclosure without any court oversight,

but it then allows FinCEN to share that coerced information with virtually any law enforcement agency

that asks for it, including foreign governments and

intelligence services—all without court oversight or

neutral review. 31 U.S.C. § 5336(c)(2)(B)(ii).

C. Shultz Does Not Rescue the CTA.

Because no recognized exception to the warrant

requirement applies, the warrantless searches compelled

by the CTA are unconstitutional. See, e.g., Patel, 576

U.S. at 423 (facially invalidating hotel-registry-disclosure ordinance where government could not demonstrate that administrative search exception applied);

Free Speech Coalition, 825 F.3d at 171, 173 (same analysis); Airbnb, 373 F. Supp. 3d at 495 (same analysis).

12

But even if Shultz could function as a stand-in for a

warrant exception, it does not apply.

1. Shultz Does Not Broadly Authorize

Reporting Requirements.

The Eleventh Circuit held that Shultz created a

special rule for “uniform reporting requirements” that

deviates from the strictures that the Fourth Amendment

imposes on every other type of search. App.19.

But Shultz never purported to announce a universal

rule. The majority opinion in Shultz upheld only the

narrow regulations that had been adopted in order to

implement the Bank Secrecy Act; it declined to opine

on the constitutionality of the statutory language itself,

which allowed the Secretary of the Treasury to impose

much broader reporting requirements than he had

chosen to impose under the regulations. Shultz, 416

U.S. at 63-64. Two of the six-justice majority in Shultz

—Justices Powell and Blackmun—joined a concurrence

observing that, although they agreed that the regulations as issued did not violate the Fourth Amendment,

“[a] significant extension of the regulations’ reporting

requirements . . . would pose substantial and difficult

constitutional questions” for them. Shultz, 416 U.S. at

78 (Powell, J., and Blackmun, J., concurring).

In fact, Shultz never even addressed the Fourth

Amendment claims of the individual depositors—that

is, the persons whose information was required to be

disclosed. Those claims were rejected for lack of standing. See Shultz, 416 U.S. at 68-69. And when this

Court reviewed the depositors’ Fourth Amendment

challenges to the Bank Secrecy Act on the merits in

Miller, the Court rejected those challenges under the

third-party doctrine. Miller, 425 U.S. at 443. Shultz

13

never purports to control all Fourth Amendment aspects

implicated by “reporting requirements.”

Nor is there any support for the notion that the

Fourth Amendment distinguishes between the forcible

disclosure of data in physical form and the forcible disclosure of the same information in electronic form.

Patel forecloses Congress’s ability to compel everyone

in America to compile a list on notebook paper of every

entity over which they have “substantial control” and

make that list available to law enforcement officers

who knock on the door and demand it. See Patel, 576

U.S. at 420-21. Congress cannot end-run that rule by

forcing everyone to mail the same list directly to the

FBI’s local field office. And because those sorts of

physical disclosures violate the Fourth Amendment,

the CTA does, too. The information obtained is identical;

whether the statute compels the information to be disclosed electronically or in hard copy does not matter.

See Airbnb, 373 F. Supp. 3d at 495 (discussing forcible

disclosure of electronic data).

2. Shultz Does Not Permit Suspicionless

Searches as Long as They Are

Nondiscretionary and “Limited.”

Beyond converting Shultz into a stand-alone

exception to the warrant requirement, the Eleventh

Circuit extrapolated from it the wrong lessons. The

Eleventh Circuit reasoned that Shultz approves of any

“reporting requirement” as long as it imposes (1)

uniform, nondiscretionary searches that (2) compel

the production of purportedly “limited” information.

That approach is wrong on both counts.

First, although preventing arbitrary and discretionary searches was one reason why the Framers adopted

14

the Fourth Amendment, an equally “central aim of the

Framers was to place obstacles in the way of a too

permeating police surveillance.” Carpenter v. United

States, 585 U.S. 296, 305 (2018) (internal quotation

marks and citation omitted). The Eleventh Circuit’s

analysis fails to acknowledge this second objective of

the Fourth Amendment. The Fourth Amendment protects against unreasonable intrusions, not merely

against discretionary intrusions. U.S. Const., amend.

IV. A search that would be unreasonably intrusive when

applied to a particular individual is not transformed

into a Fourth-Amendment-compliant search merely

because that same level of unreasonable intrusion is

applied to everyone. Carpenter, 585 U.S. at 305.

That is why it did not matter in Edmond that “the

officers have no discretion to stop any vehicle out of

sequence.” Edmond, 531 U.S. at 35. What made the

searches unreasonable was not that they were subject

to abuse on a case-by-case basis but that they were

suspicionless searches whose primary purpose was

crime control. Id. at 40. The Court refused “to recognize

exceptions to the general rule of individualized suspicion

where governmental authorities primarily pursue their

general crime control ends.” Id. at 43. That is because,

if officers were permitted to make uniform, discretionless

traffic stops for criminal-law enforcement purposes,

then there would be nothing to stop officers from subjecting innocent citizens to suspicionless stops as “a

routine part of American life,” as long as the stops were

universal or otherwise without discretion. Edmond,

531 U.S. at 42.

In other words, there is no Big Brother exception

to the Fourth Amendment. Applying a search regime

universally and uniformly does not convert an unrea-

15

sonable search into a reasonable one. Id.; see also

id. at 56 (Thomas, J., dissenting) (“I rather doubt that

the Framers of the Fourth Amendment would have

considered ‘reasonable’ a program of indiscriminate

stops of individuals not suspected of wrongdoing.”).

The Eleventh Circuit has improperly allowed the CTA

to do precisely what Edmond prohibited, enabling the

government to extract private information from innocent citizens without suspicion of wrongdoing, as long

as the searches are universal. That holding interprets

Shultz as enabling an outcome that this Court has

repeatedly refused to allow.

Second, it does not help the government’s position

to insist that the CTA’s compelled disclosures are relatively “limited.” That argument is like saying that, if

the police break into a filing cabinet without a warrant,

they do not violate the Fourth Amendment as long as

they take out only the one or two pieces of paper that

they want. That has never been the rule. Criminal

investigators do not have the right to obtain just a little

bit of private information in violation of the Fourth

Amendment, as long as they leave most of it behind.

To the extent that the Eleventh Circuit believed

that the CTA’s reporting requirement imposes minimal

burden on those who are required to upload the information, the burden of compliance is not the relevant

inquiry. Even if technology allows a search to be conducted with little to no effort from the target individual,

it still violates the Fourth Amendment if there is an

excessive degree of government intrusion into property or privacy interests. That is why searches of cellsite data and thermal imaging are unconstitutional,

even though those searches do not require the targeted

individuals to engage in any effort at all. See, e.g.,

16

Carpenter, 585 U.S. at 313 (cell-site data); Kyllo v.

United States, 533 U.S. 27, 35 (2001) (thermal imaging).

The relevant question is not whether the search requires

effort by the individual being searched; it is whether

the search intrudes upon the person’s property or

privacy interests. Carpenter, 585 U.S. at 313; see also

Airbnb, 373 F. Supp. 3d at 495. And here, the CTA

unmistakably does.

3. The Disclosure Regime in Shultz Was

Much Narrower than the Disclosure

Regime Mandated by the CTA.

Even to the extent that Shultz suggests that some

reporting regimes may be narrowly tailored enough to

comply with the Fourth Amendment, the regime at

issue in Shultz was far different than that imposed by

the CTA. See SBAM, 769 F. Supp. 3d at 733-37.

a. Shultz Compelled Disclosure Only

of Transactions That Were Suspicious.

Unlike the CTA, the regulations at issue in Shultz

compelled disclosure only when there was already a

level of individualized suspicion. Under the regulations, banks were required to disclose information only

about certain specific, “abnormally large” transactions:

namely, transfers of at least $10,000 in currency.

Shultz, 416 U.S. at 67; see also id. at 41 n.14. In fact, the

regulations exempted banks from disclosing even those

large-currency transfers when they involved “established customer[s]” who maintained accounts consistent with “customary” industry practices. Id. at 39.

The Bank Secrecy Act regulations therefore were

triggered under circumstances that—like in a valid

Terry stop—give rise to at least a reasonable suspicion

17

of illegality. Just as the officers in Terry had reasonable

suspicion that the suspects’ abnormal activity (walking

back and forth in front of a store) was a marker of

potential criminality, so the anomalous behavior of a

brand-new banking customer transferring at least

$10,000 in currency gave the government enough

suspicion to conduct a limited search that is no more

than sufficient to allay the suspicion. Terry v. Ohio, 392

U.S. 1, 22-23 (1968). By linking the searches to specific transactions, Shultz approved searches that were

tied to specific, suspicious circumstances, just like in

Terry. That is consistent with the general rule that

searches and seizures may be effected even for “general crime control purposes” as long as they are based

on “some quantum of individualized suspicion.” Ashcroft

v. al-Kidd, 563 U.S. 731, 737-38 (2011).

The CTA is far different. While Shultz opined that

there must be “a tenable congressional determination

as to improper use of transactions of that type in

interstate commerce,” Shultz, 416 U.S. at 67, the CTA

is not tied to any “transactions” of any type, suspicious

or otherwise. The CTA regulates every small business

in America, simply because they exist, not because of

anything they do. Unlike the Bank Secrecy Act, the CTA

is not targeted at obtaining more information about

particular suspicious activity in order to allay the

government’s legitimate concerns about that activity.

The CTA, instead, creates a database of everyone’s

information without any antecedent suspicion, merely

because an entity has been created. The mere creation

of an entity is not “abnormal” or suspicious. The whole

purpose of the CTA is simply to create a haystack so

that the government can search through it for anything

that might look like a needle. That is the same sort of

18

rummaging that has been anathema to the Fourth

Amendment since its adoption. See Byrd, 584 U.S. at

403; Marshall, 436 U.S. at 311-12. Because Shultz

involved the constitutionality of searches that were

supported by some indicia of suspicion, it says very

little about the constitutionality of searches under the

CTA, which are not.

b. The Disclosures Compelled in

Shultz Were Much More Limited

Than the Disclosures Compelled

by the CTA.

The Eleventh Circuit was also wrong to equate

the disclosures at issue in Shultz with the disclosures

at issue here. Exposing the identity of individuals who

can control a company or own convertible notes or

other contingent interests in it is an intrusive inquiry,

not a “limited” one. The government has argued both

that the information compelled by the CTA is incredibly

minimal but that the government also desperately

needs it to fill the “gap” in its law enforcement efforts.

The government is arguing both that the information

is crucially important and that it has no real value.

That is not a winning approach.

Nor is it merely a de minimis intrusion for every

small business owner across the country to be subject

to a costly and ongoing reporting requirement, under

which their private business information may be provided to foreign intelligence agencies. Paying anywhere

between $85 to $2,600 in order to hand over information to government actors so that they can prosecute

you with it or share it with foreign intelligence services

is not the sort of “limited” intrusion that Shultz had in

mind. It is instead, “a broad, grab-everything collection

of suspicionless data because some day, some way,

19

somehow, someone in law enforcement might find it

useful.” SBAM, 769 F. Supp. 3d at 735.

c. Shultz Involved Pervasively Regulated Entities.

Shultz also involved disclosure obligations that

were imposed upon entities—banks—that are highly

regulated. Shultz is therefore best understood as a

particular species of administrative search that allows

the government to require already-heavily regulated

entities to disclose objectively suspicious transactions,

not as providing permission for the government to

impose suspicionless disclosure obligations on every

individual and entity in the country.

Not only did Shultz adopt a test that is a close

cousin of the administrative search analysis, but Shultz

also took pains to emphasize that (1) the reporting

requirements applied only to banks, not to individual

depositors, and (2) banks had been required to furnish

these reports for the previous two decades under prior

regulatory regimes. Shultz, 416 U.S. at 38 & n.12. In

other words, the Bank Secrecy Act’s reporting requirements applied solely to financial entities that were

already pervasively regulated and had already been

subject to very similar reporting requirements under

other regimes for more than twenty years. That is a

hallmark of the administrative search exception. See

Free Speech Coalition, 825 F.3d at 169-70. It also means

that the scope of the Bank Secrecy Act’s compelled disclosures is far more limited than the scope of the compelled disclosures under the CTA, which apply to almost

every small business in every industry in the country.

20

II. The Eleventh Circuit’s Holding Will Have

Profound Effects If It Is Not Corrected.

A. The Eleventh Circuit’s Anemic View of the

Fourth Amendment Will Fundamentally

Change How Law Enforcement Agencies

Can Investigate and Prosecute U.S.

Citizens.

The Eleventh Circuit did not attempt to reconcile

Shultz with any of this Court’s subsequent Fourth

Amendment jurisprudence. Instead, under the Eleventh

Circuit’s approach, as long as Congress characterizes

a search as a “reporting requirement,” it can forcibly

compel disclosure of information for criminal investigation purposes whenever it determines that this information would be useful to look through in order to

determine whether ordinary, unsuspicious citizens were

committing crimes.

If Shultz applies wholesale to reporting regimes

that expressly demand information for criminal law

enforcement purposes, the implications will be staggering. In the Eleventh Circuit’s view, Shultz eliminates

not only all of the ordinary Fourth Amendment protections (including individualized suspicion and a

warrant) but also all of the protections that would apply

to an administrative search (including pre-compliance

review, a non-law-enforcement purpose, and application

only to pervasively regulated industries). Congress—

or State and local government actors—could sidestep

the Fourth Amendment and provide law enforcement

officers with suspicionless access to private information as long as they enacted discretionless “reporting

regimes” instead of spot-check inspections. See Airbnb,

373 F. Supp. 3d at 491, 495 (noting implications of such

a regime).

21

The pace of technological advancement simply

raises the stakes. In the age of big data and artificial

intelligence, the significantly reduced cost of administering and searching large databases make it vastly

more tempting for government actors to collect and

cross-index as much data on citizens as they can. See

Airbnb, 373 F. Supp. 3d at 491, 495 (noting implications

of such a regime); see also SBAM, 769 F. Supp. 3d at 732

n.6. Upholding the CTA allows governments to compel

Americans to actively contribute nonpublic information to the dossier that law enforcement agencies already

have on file for them—all without any suspicion that

any one in particular has done anything wrong. That

sort of investigatory regime would be permissible only

under a far different conception of the Fourth Amendment than the one that the Framers adopted. United

States v. Di Re, 332 U.S. 581, 595 (1948); see also

Olmstead, 277 U.S. at 478 (Brandeis, J., dissenting).

This result is even more troubling because circumventing the Fourth Amendment is exactly what Congress

enacted the CTA to do. FinCEN’s then-Director testified to Congress that the CTA would be helpful for law

enforcement because it would eliminate investigators’

need to comply with the ordinary tools of investigation—like “grand jury subpoenas” and “search warrants”

—to obtain beneficial ownership information. 87 Fed.

Reg. at 59504. According to the Director, complying

with these requirements “takes an enormous amount

of time” and “wastes resources.” Id. Grand jury subpoenas, for example, were insufficient because they

“require an underlying grand jury investigation into a

possible violation of law.” Id. The CTA was designed

to make ownership information “immediately available to law enforcement, intelligence, or national

22

security agencies” without the hassle of a warrant or

judicial oversight. Id. at 59505. The Eleventh Circuit’s

approval of the CTA rewards its intentional end-run

around the Constitution.

B. Allowing the Government to Force Private

Information from U.S. Citizens So That

They Can Be Prosecuted with It Is an

Invitation for Abuse.

The Eleventh Circuit downplayed the dangers

inherent in providing governments the power to

collect data on citizens for criminal law-enforcement

purposes without any antecedent suspicion, reasoning

that “periodic audits” by other executive-branch members would ensure that FinCEN does not use inappropriately use or share the data it squeezes out of citizens

under the CTA. App.20. That optimism is unwarranted.

First, despite the Eleventh Circuit’s attempts to

minimize the degree to which information can be

shared under the CTA, the statute in fact expressly

permits data extracted by the statute from U.S. citizens

to be shared with any prosecutor who asks for it,

see 31 U.S.C. § 5336(c)(2)(B)(i)(II), and even with “law

enforcement . . . or prosecutorial authorities” in “trusted

foreign countries” at their request and at the executive

branch’s discretion, see 31 U.S.C. § 5336(c) (2)(B)(ii).

Nothing in the statute prevents the executive branch

from sharing with prosecutors and foreign intelligence

agencies private data that it compelled a public servant

or potential political rival to disclose under the CTA.

Second, events both past and present expose the

hollowness of the lower court’s confidence that misuse

of CTA-compelled data would be adequately deterred

by “periodic audits” conducted by other officials within

23

the executive branch. Government actors have an unfortunate history of misusing data that they collect about

law-abiding citizens.5 The FBI, for example, illegally

accessed a government database “more than 278,000

times” over the course of several years, “including

searching for communications of people arrested at

protests of police violence and people who donated to

a congressional candidate.”6 The IRS recently agreed

to share certain taxpayer data with DHS so that DHS

could pursue immigration and potential criminal

investigations.7 Allegations have swirled that rogue

actors have misused data to which they had access in

their governmental capacities.8 And intentional misuse

of private data is only one part of the problem. Infor-

5 See Stephanie K. Pell, et al., Privacy under siege: DOGE’s one

big, beautiful database, Brookings Institution (June 25, 2025),

https://www.brookings.edu/articles/privacy-under-siege-doges-onebig-beautiful-database/ (discussing impetus for federal Privacy Act).

6 Electronic Frontier Foundation, Newly Public FISC Opinion is

The Best Evidence For Why Congress Must End Section 702 (May

23, 2023), https://www.eff.org/deeplinks/2023/05/newly-publicfisc-opinion-best-evidence-why-congress-must-end-section-702.

7 See Bogage, Jacob et al., IRS improperly disclosed confidential

immigrant tax data to DHS, THE WASHINGTON POST (Feb. 11,

2026), https://www.washingtonpost.com/business/2026/02/11/

immigrants-irs-dhs-tax-data/.

8 See, e.g., Kornfield, Meryl, et al., Whistleblower claims ex-DOGE

member says he took Social Security data to new job, THE

WASHINGTON POST (Mar. 10, 2026), https://www.washingtonpost.com/

politics/2026/03/10/social-security-data-breach-doge-2/(Social

Security Administration investigating a claim by a former U.S.

DOGE Service employee that “he had access to two highly

sensitive agency databases and planned to share the information

with his private employer”).

24

mation collected by government agencies may also be

improperly shared through carelessness or mistake.9

The mass data collection embodied in the CTA

only exacerbates these risks. And in the meantime,

the statute tramples Americans’ civil liberties “at a

cost of billions of dollars to the citizens least likely to

afford it.” SBAM, 769 F. Supp. 3d at 739. The Fourth

Amendment was designed to prevent the government

from squeezing information from law-abiding citizens

for criminal-investigation purposes without any

suspicion of wrongdoing. Forcing American citizens to

pay for the panopticon simply adds insult to injury.

9 See Kanno-Youngs, Zolan and Sanger, David E., Border Agency’s

Images of Travelers Stolen in Hack, N.Y. TIMES (Jun. 10, 2019),

https://www.nytimes.com/2019/06/10/us/politics/customs-databreach.html (federal subcontractor improperly transferred “tens

of thousands of images of travelers and license plates” stored by

CPB, which were later hacked); Greenberg, Andy, The Year of the

Mega Data Breach, FORBES (Nov. 24, 2009), https://www.forbes.

com/2009/11/24/security-hackers-data-technology-cio-networkbreaches.html (the National Records Association sent a hard drive

with the personal information of 76 million servicemembers to

an IT contractor without wiping the data).

25

CONCLUSION

The petition should be granted.

Respectfully submitted,

Stephen J. van Stempvoort

Counsel of Record

D. Andrew Portinga

Amanda L. Rauh-Bieri

MILLER JOHNSON

45 Ottawa Avenue SW, Suite 1100

Grand Rapids, MI 49503

(616) 831-1700

vanstempvoorts@millerjohnson.com

Counsel for Amici Curiae

May 21, 2026