Nicholas Anthony
Financial privacy has attracted increased attention in recent months for both better and worse. In some ways, it seems the concerns held by privacy activists are finally being heard. In other ways, it seems that government officials are doubling down even further on decades-old mistakes. So, let’s take a few minutes to review what the government has been doing.
Surveillance at the Border
Starting with both good news and bad news, there have been significant developments at the southern border. The Trump administration called for surveillance of cash transactions over $200 back in March. Since then, however, the Institute for Justice and the Texas Association of Money Services Businesses took the issue to court. Both organizations secured temporary restraining orders after explaining that the costs of the new surveillance requirements would mean the end of many small businesses.
The court has since weighed in again in the public’s favor by halting the new surveillance until a final decision is reached in the lawsuit. The announcement also gave reasons to be optimistic about the case. The court described the $200 surveillance order as “unreasonable” because it “overreaches,” “defies common sense,” and “likely violates the Fourth Amendment.” The Institute for Justice’s Rob Johnson described it well, saying this case could prove to be a turning point for financial privacy.
“Big Beautiful” Bill Has an Ugly Side
While there has been success in the courts challenging the $200 surveillance threshold at the border, the fight over financial privacy is not over. The Trump administration apparently is moving forward with new tactics. Section 112105 of the “Big Beautiful Bill” would set a 5 percent tax on money sent abroad. At first glance, this tax might seem like a routine revenue measure. After all, what does taxing remittances have to do with financial privacy? The link becomes clearer when you consider how the tax would be implemented—and who it targets.
Individuals can avoid the tax if they (1) prove they are US citizens or nationals and (2) use a government-approved service provider to send the funds. That means, in effect, the bill would create a two-tiered system where anyone who wants to avoid the tax must surrender personal information and go through state-sanctioned channels. This setup would not just collect revenue—it would function as a data collection tool. In doing so, the bill would create a system for flagging and identifying financial transactions. (For more on the tax implications and broader impact of the bill, see what the Cato Institute’s Adam Michel had to say.)
Samourai Wallet Case Opens New Questions
Back in the courts, the case against Samourai Wallet (a cryptocurrency wallet) is troubling. And new evidence reveals that the case is worse than it previously seemed. A core issue was that the software developers behind Samourai Wallet were charged with operating an unlicensed money transmitter. The problem? The Financial Crimes Enforcement Network (FinCEN)—the agency charged with overseeing these businesses—told the Department of Justice that Samourai Wallet was not acting as a money transmitter. This conversation occurred before the charges were made, and they were withheld from the defense for more than a year.
There are many reasons to criticize FinCEN. It has repeatedly refused to provide concrete data on the effectiveness of financial surveillance, and it appears to have ignored requirements set by Congress. Yet, in this instance, the agency deserves credit for trying to correct the record. It’s a shame that the Department of Justice wasn’t interested. As Coin Center’s Peter Van Valkenburgh put it, “This is more than a legal misstep. It’s a violation of basic fairness, and a warning signal to anyone who builds or publishes general-purpose tools on the internet.”
Congress Pushes Back
With that said, some gems are coming out of the 119th Congress. Senator Mike Lee (R‑UT) introduced the Saving Privacy Act, and Representative John Rose (R‑TN) introduced the Bank Privacy Reform Act. The two bills differ in scope—Senator Lee’s legislation, for instance, would prohibit the creation of a central bank digital currency—but both bills share a critical goal: attacking the major failures of the Bank Secrecy Act regime.
Getting anything through Congress is an uphill battle, especially when it comes to limiting the powers of the government itself. But it is a battle worth fighting. Many of the financial surveillance programs in place today didn’t just appear overnight—they were created, expanded, or authorized by Congress over decades. Therefore, it’s up to Congress to correct these past mistakes. And both Senator Lee and Representative Rose are striving to do that.
Conclusion
The last few months were hectic, but not all bad. Amidst the government surveilling cash, prosecuting people in bad faith, and creating new surveillance mechanisms, there were significant wins. Courts pushed back on overreach and called into question rationales used to expand surveillance for decades. At the same time, Congress began to offer reforms to correct past mistakes. The road ahead won’t be easy, but momentum is building. That is something to be optimistic about.
