Revealing Innovative Terror Finance: Fourth Amendment Considerations of Transactional Datamining

Ryan Greer

Abstract

Since 9/11, the law enforcement and intelligence communities have reformed their policies in order to more adequately “connect the dots” when investigating possible terrorist threats. Prior to 9/11, the U.S. had almost no anti-terrorist financing regime, whereas we now dedicate significant resources to combating terrorist financing. One policy, which may currently be in use as a Treasury Department black program, is to use data analytics such as data-mining to reveal possible threats. Data-mining has been a controversial issue, particularly in regards to its status as a lawful search and whether it (in cases with a domestic nexus) should require a warrant, particularly given that the Foreign Intelligence Surveillance Act paradigm requires a warrant in internationally-focused cases that would require a warrant in the criminal context. This paper addresses the privacy concerns of data-mining in international terrorism investigations that, if data-mining were an unreasonable search, would require a FISA warrant. It is the author’s opinion that pattern-based data-mining – as opposed to person-focused – represents a reasonable search akin to a Terry stop and that, once a particular suspect is found to exhibit a risky pattern, a FISA warrant would be required to investigate that person, but not at the inception of the data-mining search.