Your bank account has less constitutional protection than your phone. That isn’t a rhetorical point. It’s the practical result of 50 years of Supreme Court doctrine, and the Arctic Frost investigation is what it looks like when the government uses that doctrine at full extension against sitting members of Congress.
The Fourth Amendment required the government to get a warrant, with particularity about what was being sought and probable cause reviewed by a neutral judge, before accessing private “papers.” The Founders were specific about papers because correspondence and financial records were the personal data of 1791. James Otis Jr. argued in 1761 that British general warrants, which gave royal officials unlimited search authority without naming what they were looking for, were the worst abuse of colonial power. The Fourth Amendment was written so that those warrants would never happen again. Papers meant financial records. The warrant protected them.
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Two Supreme Court decisions dismantled a significant portion of that protection. United States v. Miller in 1976 and Smith v. Maryland in 1979 established the third-party doctrine: Information you share with a bank or phone company loses Fourth Amendment protection because you “voluntarily” conveyed it to a third party. The government can compel those records without a warrant. In a digital economy where every financial transaction leaves an institutional record, that reasoning empties the amendment of most of its practical force.
Arctic Frost is the most dramatic recent example of where this leads. The FBI opened that investigation in April 2022 to examine the alleged fake electors scheme. It became the basis for special counsel Jack Smith’s criminal case against President Donald Trump. Senate Judiciary Committee oversight revealed hundreds of subpoenas targeting more than 400 Republican organizations and individuals, phone data collected from at least nine sitting senators, and the physical seizure of Rep. Scott Perry’s (R-PA) cellphone. None of it required a particularized warrant. The third-party doctrine covered the phone metadata. Administrative subpoena authority covered the documents. FBI Director Kash Patel subsequently dismantled the unit responsible, CR-15, and fired the agents involved. The constitutional architecture that made all of it possible is still in place.
The Supreme Court has pushed back at the edges. Riley v. California in 2014 required a warrant to search a cellphone incident to arrest. Carpenter v. United States in 2018 required a warrant for historical cell-site location data. Neither holding reaches financial records. Administrative subpoenas from the Securities and Exchange Commission, IRS, Federal Deposit Insurance Corp, and FinCEN compel financial institutions to produce customer records without prior judicial approval. The account holder may or may not be notified. The Founders required probable cause supported by oath. The administrative subpoena requires neither.
I advise ultra-high-net-worth families whose financial data is distributed across custodians, advisers, fund administrators, and tax professionals. Every one of those institutions is a third party under Miller and Smith. None of those records has meaningful Fourth Amendment protection from a properly formatted government demand. When clients ask about financial privacy, I tell them the truth: the government can get most of it without going to a judge first.
WASHINGTON’S WARNING ABOUT FACTIONS MORE RELEVANT THAN EVER
Beyond administrative subpoenas, federal agencies have purchased personal financial and location data from commercial data brokers on the theory that buying voluntarily sold information requires no warrant at all. That mechanism operates entirely outside the judicial review process, allowing agencies to acquire financial intelligence about specific individuals without any court involvement or subject notification. The Stored Communications Act and the Right to Financial Privacy Act of 1978 represent the last serious legislative effort to impose warrant standards on government access to financial records. Both predate the digital economy. Both need updating.
Congress has the authority to fix this. The Right to Financial Privacy Act of 1978 represents the last serious effort to impose warrant standards on administrative access to personal financial records. It hasn’t been updated for a digital economy. The Founders wrote “papers” into the amendment because financial records were the infrastructure of private life. In 2026, that infrastructure lives on third-party servers, and the warrant requirement supposed to protect it covers your phone but not your bank account.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a BS from Northeastern University and has completed postgraduate studies at UCLA, UPENN, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.
