A Stitch in Haste

Jack Balkin links, not unreasonably, the Spitzer scandal to the War on Terror:

These events offer a window into a much larger phenomenon, the National Surveillance State, in which the state increasingly identifies and solves problems of governance through the collection, collation and analysis of information. Governments have always used information, but today's techniques are made more powerful and more prevalent by lower costs of computing and data storage.
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If computing power increases enough, there is no reason why governments might not lower the threshold for reporting of suspicious transactions, or, indeed, require that every transaction over 100 dollars be reported. All this information could later be sifted through by data mining programs, in order to spot patterns of suspicious activity. The only limit is the technology and the manpower that law enforcement is willing to devote to analysis of financial transactions.

Of course, there ought to be another "limit," namely a rational basis for collecting such data.

It's one thing to suggest that there is a reasonable inference that a transaction involving over $10,000 in currency is likely, perhaps almost certain, to involve illegal activity, and that therefore the government has a rational basis to demand disclosure of all such transactions. That's not the libertarian conclusion, but it's not a facially absurd premise.

Demanding disclosure of all currency transactions involving over $100, however, is facially absurd. Demanding disclosure of all transactions of any kind over $100 would leapfrog over "facially absurd" and straight into Orwell. A terrorist can't bring down a skyscraper with one $100 bill or with one prepaid $100 phone card. The fact that the government can now technologically and economically perform such micro-surveillance still does not mean that it can constitutionally perform it. "You don't want another 9/11, do you?" is simply not enough to justify turning over every ATM, credit card, debit card and EFT transaction, no matter how small, to the government.

Even conceding (which libertarians ought never do anyway) that some (indeed most) laws are subject to mere rational basis review does not mean that a law that fails rational basis review (i.e., an irrational law) should not be decried — and judicially invalidated — as such.