I have not studied the opinion but my quick perusal of it saw nothing new in the basic analysis. The opinion is 30 pages and concludes:
The required records exception to the Fifth Amendment privilege against self‐incrimination still exists. The BSA’s requirements at issue here are “essentially regulatory,” the subpoenaed records are “customarily kept,” and the records have “public aspects” sufficient to render the exception applicable. Because Doe cannot lawfully excuse his failure to comply with the subpoena, the district court was within its discretion to impose sanctions for his noncompliance.I guess I am little surprised that, given the consistent holdings of the courts of appeals, the courts are still spending significant resources to replow the same ground over and over and over. Of course, each court of appeals has to reach the an independent conclusion, but once it reaches the conclusion, does it have to say basically the same thing at great length in different words when it could incorporate by reference other holdings that are equally as good?
A couple of other excerpts that I found interesting:
1. On the evolution of the Fifth Amendment privilege to documents via the Act of Production privilege (pp. 8-9):
The privilege has thus evolved since its inception to a broader prophylactic regime that, in certain circumstances, protects individuals from producing documents where they are incriminated by the contents of the documents. See id. As applied, the privilege is practical; it inoculates people from being forced to contribute to their own prosecution while not unduly restricting grand juries’ ability to seek the truth. Doe argues – and the government does not meaningfully contest – that absent an exception, the act of production privilege shields Doe from complying with the grand jury’s subpoena.2. On the uses of and access to FBARs, In fn 5 on p. 19:
Doe points out that the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) lists the BSA as one of the tools that it uses to pursue its goals of criminal investigation. It is neither surprising nor persuasive that a law enforcement organization uses a multi‐purposed statute for law enforcement ends. We assume that insofar as the Central Intelligence Agency uses the BSA, it uses it for intelligence and counter‐intelligence purposes, while the Internal Revenue Service uses it for revenue collection purposes. Doe asserts that “[t]he government has never pointed to a ‘regulatory’ act that FinCEN performs with FBAR [Report of Foreign Bank and Financial Account] data.” Doe Brief at 35. However, other agencies also use the data obtained through the challenged reports:
The Treasury Department shares the information it collects pursuant to the Act’s requirements with other agencies—including the Office of the Comptroller of the Currency, the Consumer Financial Protection Bureau, the
Federal Reserve Board, the Federal Deposit Insurance Corporation, the National Credit Union Administration, and the Office of Thrift Supervision—none of which are empowered to bring criminal prosecutions.
Grand Jury Proceedings, No. 4‐10, 707 F.3d at 1271 (quoting Grand Jury Subpoena, 696 F.3d at 434).3. On ignorance of the BSA requirement, from fn 8 on p. 29:
fn8 Although it is not necessary to our resolution of this case in which Doe has not alleged ignorance of the BSA’s recordkeeping requirements, the government’s brief acknowledges that “an individual who was unaware that he was engaging in a regulated activity would not be able to establish a risk of self‐incrimination in the first place.” Appellee Brief at 38 n.17.