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Comment by Manuel_D | Hacker News Reader

That's not how the law works in the US. The government cannot have a third party take action on its behalf to do something that would be illegal for the government to do itself. This is why the Biden administration had a restraining order filed against it, on account of them pressuring social media companies to ban content it didn't like. This violated the First Amendment, despite the fact that it was a third party that was doing the actual banning at the behest of the government.

The government could legally create its own facial recognition technology if it wanted to. They're not avoiding the law, facial recognition isn't illegal.

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That's pretty much how KYC works. The government can't just willy nilly demand papers of everyone going into the bank to open up an account due to the 4th amendment. So they just make the bank do it so it is a "private" act, and then for instance IRS is authorized to do warrantless seizure on the accounts which are now tied to names that were forced to be revealed under KYC laws.

The government doesn't need a warrant to access bank records, as per the US's banking laws. They just need an administrative subpoena, which doesn't have to be signed off by a judge.

This is not and example of the government sidestepping laws through a third party. You just don't like the existing laws, and would prefer to make certain things illegal that are presently legal.

There wouldn't be any identity linked for an anonymous bank account to 'access', were it not for the warrantless search of your papers required under KYC but done via private entity (sidestepping 4th amendment) to open an account. That part is done without even a subpoena.

That is, the US banking laws force private actors, under color of law, to systematically inspect the papers of those opening an account, which conveniently sidesteps the 4th amendment implication of the government searching the papers themselves at everyone opening an account at the bank. And then allows the government to act on the information of that forced search, even without a warrant.

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I'm referring to this:

>The government cannot have a third party take action on its behalf to do something that would be illegal for the government to do itself.

It is illegal for the government to violate the 4th amendment, whether or not a 'law' beyond what is written in the constitution is present.

Clearly the government would love to just take all your information directly when you open an account, as that would be even better for them, but due to the 4th amendment they can't do that. But just asking or without a warrant requiring the bank to act on it or reveal it is almost as easy, so they just sidestep that by just requiring via the law the bank to search your papers instead. It's effectively a government imposed search but carried out by a 3rd party.

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>This is just factually wrong. The Bank Secrecy Act specifically requires that banks to provide this info. The 4th amendment does not prohibit this. If a bank refused to provide this required information, the government would go in and get that information directly.

>Again, no law is being avoided. You just don't like the

This is not 'just factually wrong.' The bank is doing the search instead of the government. A blanket search of everyone, even without a subpeona, even without an individualized notice, even without any sort of event that would require reporting to the government under the BSA, even then they still are required to search the information even in the instances that it doesn't end up being required to be transmitted to the government. You're saying the portion of data the government collects might be 4A compliant, but that doesn't mean the private actor being forced to collect information that doesn't even get reported is 4A compliant if the government did it. You're just saying the subset of required KYC collected information that ends up transmitted to the government was 4A compliant, which isn't sufficient to establish the government could have collected all the information to begin with under the 4A as they have required the bank to do.

>the government would go in and get that information directly

A blanket sweep of everyone's information willy nilly by the government is not 4A compliant, that's why they've had the bank do it on their behalf.

> Clearly the government would love to just take all your information directly when you open an account, as that would be even better for them, but due to the 4th amendment they can't do that

This is just factually wrong. The Bank Secrecy Act specifically requires that banks to provide this info. The 4th amendment does not prohibit this. If a bank refused to provide this required information, the government would go in and get that information directly.

Again, no law is being avoided. You just don't like the law.

> A blanket sweep of everyone's information willy nilly by the government is not 4A compliant, that's why they've had the bank do it on their behalf.

Wrong again. If retrieving this info was a violation of the Fourth Amendment, then banks could just say "no" when the government asks them for customer data data.

Groups did sue following the passage of the Bank Secrecy Act, and argued that it violated the Fourth and Fifth amendments. But they lost, and the Supreme Court determined that it did not violate the constitution.

For the third time: no law is being "avoided", you just don't like the law.

Right, but the point is, no law is being avoided. The comment I responded to wrote:

> Always easier when you can avoid the law and just buy it off the shelf. (Emphasis mine)

No law is being avoided, neither in your banking example nor in the situation with Clearview. To be sure, people can have whatever opinion on the law that they want. But I do want to make it clear the the government is not "avoiding" any law here.

> No law is being avoided

Following the conversation, this reads as too strong a statement. The Constitution is law, and it (the fourth amendment) is being avoided via the Bank Secrecy Act. The Constitution supersedes any conflicting Acts of Congress.

Groups did sue after the Bank Secrecy Act, and the cases went all the way to the Supreme Court. The Supreme Court determined that it did not violate the constitution: https://en.wikipedia.org/wiki/Bank_Secrecy_Act

> Shortly after passage, several groups attempted to have the courts rule the law unconstitutional, claiming it violated both Fourth Amendment rights against unwarranted search and seizure, and Fifth Amendment rights of due process. Several cases were combined before the Supreme Court in California Bankers Assn. v. Shultz, 416 U.S. 21 (1974), which ruled that the Act did not violate the Constitution

(1) KYC requirements have changed significantly since 1974, so as applied findings in 1974 won't apply to what we're referring to today.

(2) SCOTUS wrote the bank customers (rather than the bankers in the suit) themselves likely didn't have standing in that suite, which meant the decision was based more around whether the banks had their rights violated. I am not arguing that the bank had its rights violated and even conceded some subset of information transmitted might be 4A compliant but rather the wholesale KYC regime (largely now based on post 9/11 acts) isn't KYC compliant and is an insult to the customers rather than to the bank. I am arguing the clients themselves are having their rights violated, and it appears to consider that to the full extent you need a case where the clients had standing unlike what the justices thought to be the case in 1974.

(3) SCOTUS has overturned their own rulings on constitutionality before, without any material change in the relevant portions of the constitution in the interim.

(4) Failing all the above, the founders have also noted our government acts imperfectly, and even noted as a last resort it can be replaced when this becomes unworkably pervasive. The fact a bunch of guys in wigs interpret something some way that says mass government imposed willy-nilly search of your papers is allowed by the 4A, only provides a much stronger binding for the rest of the government to follow it, not create an objective truth.

At this point you've stopped attempting to argue that banking's information collection requirements is "avoiding" the law, and instead have pivoted to speculation about whether the Supreme Court might reinterpret the Constitution such that it prohibits this kind of data collection mandates.

But until such a ruling from the Supreme Court is made, the previous ruling is the law of the land. So as I said: it's not the government avoiding a law by acting through a third party, you just don't like the law. And it sounds like you don't disagree.

I'm arguing the statutory law as applied today is avoiding the constitution, which is the supreme law. That is, the government is ignoring the supreme law by acting through a 3rd party. This doesn't "pivot" from my original position. Claiming so just allows you to "pivot" around my 4 points, and "avoid" addressing the inconvenience of their existence with a thought terminating quip that it just boils down to I "don't like the law".

You're "speculating" that a SCOTUS decision from 1974 applies to KYC today which has changed significantly since the passing of the BSA to a much more expanded search of your papers, updated significantly post 9/11. Moreover, the ruling you cite claims they didn't even think the clients themselves had standing in that suite, which reduces the strength of your argument since my assertion was that the clients were having their rights violated and your cited case largely contemplated whether the bankers had their rights violated.

> This is why the Biden administration had a restraining order filed against it, on account of them pressuring social media companies to ban content it didn't like. This violated the First Amendment

It's very strange of you to leave out that the extremely right-wing 5th Circuit's opinion was overturned 6-3 by SCOTUS because "pressuring social media companies to ban content" was a complete fabrication the plaintiffs failed to support whatsoever.

Regardless of the subsequent lifting of the order, it still illustrates that the government cannot make private parties carry out illegal acts on its behalf. If anything, the fact that the circuit's decision was later overturned shows that the courts are erring on the side of restraining the government when they try to make third parties carry out actions that the government cannot do legally.

It's simply bizarre to claim that a blatantly partisan circuit court issuing capricious restrictions on their political opposition and having them vacated by SCOTUS is evidence of "the courts" erring against "the government" generally. The decision was overturned because the plaintiffs' case was a baseless fiction that the Biden administration was ever even implicitly compelling those third parties to do anything. The plaintiffs' standing was so plainly nonexistent that even 3/6 of the majority from Kennedy v. Bremerton School District couldn't pretend there was a case. The only example that case serves is of the most Republican-allied circuit court consistently issuing garbage opinions to empower Republican administrations and reconsolidate partisan policymaking to itself during Democratic administrations.

Regardless of how wrong the 5th circuit decision was in this case, the point was just to highlight that the law doesn't allow the government to circumvent restrictions by going through a third party. Clearly this particular case triggers strong feelings in you, but this is really not at all pertinent to the main point I'm making.

A point hasn't actually been made when the sole example, presented as fact, was a partisan lie that collapsed under extremely basic scrutiny. The decision had nothing to do with this strange notion that the courts err on the side of restraining the government and everything to do with the fact the 5th Circuit [yet again] presumed an alternate reality in order to achieve a Republican policy victory.

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