dissenting.
Although I am in general agreement with the opinions of my Brothers Douglas and Brennan, I believe it important to set forth what I view as the essential issue in these cases.
*94The purposes of the recordkeeping requirements of the Bank Secrecy Act are clear from the language of the legislation itself — to require the maintenance of records which-will later be available for examination by the Government in “criminal, tax, or regulatory'investigations or proceedings.” See 12 U. S. C. .§§ 1829b-(a)(2) and 1951(b). The maintenance of the records is thus .but the initial step in a process whereby the Government seeks to • acquire the private financial papers of the millions of individuals, businesses, ‘and organizations that maintain accounts in banks and use negotiable instruments such as checks to carry out the financial side of their day-by-day transactions. In my view, this attempt to acquire private papers constitutes a search and seizure under the Fourth Amendment.
As this Court settled long ago in Boyd v. United States, 116 U. S. 616, 622 (1886)., “a compulsory production of a man’s private papers to establish a criminal charge against him ... is within the scope of the Fourth Amendment to the Constitution . . . .” The acquisition of records in this case, as we said of the order to produce an invoice in Boyd, may lack the “aggravating incidents of actual search arid seizure, such as forcible, entry info a man’s house .and searching amongst, his papers . . . /’ ibid., but this cannot change its intrinsic character as a search and seizure. We do well to recall the admonishment in Boyd, id., at 635: • ■
-“It may. be^'-that it, is the obnoxious thing in--its mildest andr feast "repulsive- form;, but illegitimate and unconstitutional practices-get their first foojfcing in that way, namely,-by silent approaches and slight deviations from legal modes of procedure.”
By compelling an otherwise unwilling bank to photo.copy' the checks .of its customers, the Government has as much of q hand in seizing those checks as if it had forced *95a private person to break into the customer's home or office and photocopy the checks there. See Byars v. United States, 273 U. S. 28 (1927). Compare Burdeau v. McDowell, 256 U. S. 465 (1921), with Lustig v. United States, 338 U. S. 74, 78-79 (Frankfurter, J.). See also Cotngold v. United States, 367 F. 2d 1 (CA9 1966). Our Fourth Amendment jurisprudence should not be so wooden as to ignore the fact' that through microfilming and other techniques of this electronic age, illegal searches and seizures can take place without the brute force' characteristic of the general warrants which raised the ire of the Founding Fathers. See Entick v. Carrington, 19 How. St. Tr. 1029 (1765); Stanford v. Texas, 379 U. S. 476, 483-484 (1965). As we emphasized in Katz v. United States, 389 U. S. 347 (1967), the absence of any physical seizure of tangible property does not foreclose Fourth Amendment inquiry. Id., at 352-353. The Fourth Amendment “governs not only the seizure of tangible items,' but extends as well to the recording of oral statements ....’’ Id., at 353.' By the same logic, the Fourth Amendment should apply to. the recording of checks mandated by the Act here. And such a massive and indiscriminate search and seizure, not only without a .warrant but also without probable cause to believe that any evidence'.to be obtained is relevant to any investigation, is'plainly inconsistent with the principles behind the Amendment. See Stanford v. Texas, supra, at 485-486; Katz v. United States, supra, at 356-359.
It.is suggested that thére is no seizure under the Fourth Amendment because the bank, which is required to create and maintain the record, is already a party to the transaction. See ante, at 52. Surely this is irrelevant to the question of whether a Government search or seizure is involved. The fact that one has disclosed private papers to the bank, for a limited purpose, within the context of *96a confidential customer-bank- relationship, does not mean that one has waived all right to the privacy of the papers. Like the user of the pay phone in Katz v. United States, who, having paid the toll, was “entitled to assume that the words he utters into the mouthpiece will not be broadcast -to the world/’ 389 U. S., at 352, so the customer of a bank, having written or deposited a check, has a reasonable expectation that his check will be ^examined for bank purposes only — to credit, debit or balance his account — and not recorded and kept on file for several years -by Government decree so that it can be available for Government scrutiny'. See United States v. First Nat. Bank of Mobile, 67 F. Supp. 616 (SD Ala. 1946).
The majority argues that any. Fourth Amendment claim is premature, since the Act itself only .affects the keeping of records and in no way changes the law regarding acquisition of the records by the Government. I cannot agree. This attempt to bifurcate the acquisition of information into two indépendent and unrelated steps is wholly unrealistic. As the Government itself concedes, “banks have in the past voluntarily allowed law enforcement officials to inspect bank records without requiring the issuance- of a summons.” Brief for Appellees in Nos. 72-985 and 72-1196, p.- 38. n. 19. Indeed, the Chief of the Organized Crime and Racketeering Section of the Criminal Division of the Justice Department told a Senate Subcommittee in 1972 that' access by the FBI to bank records without process occurs “with some degree of frequency.”. Hearings to amend the Bank Secrecy Act (S., -3814 ’and S. 3828) before the Subcommittee on Financial Institutions of the Senate Committee on Banking, Housing and Urban Affairs, :92d Cong., 2d Seas., 114-115 (1972).
The plain fact of the matter is that the Act’s record-keeping" requirement feeds into a system of widespread *97informal access to bank records by Government agencies and law enforcement personnel. If these customers’ Fourth Amendment claims cannot be raised now, they cannot be raised at all, for once recorded, their checks will be readily accessible, without judicial process and without any showing of probable cause, to any of the several agencies that presently have informal access to bank records.
The Government suggests- that the Act does not in any way precludé banks from refusing to allow informal access and insisting on the issuance of legal process before turning over a customer’s financial records. Such a refusal, however, even if accompanied by notice to the customer with an opportunity for him to assert his constitutional claims, comes too late, for the seizure has already taken place. By virtue of the. Act’s recordkeeping requirement, copies of the customer’s checks are already in the bank’s files and amenable to process. The seizure has already occurred, and all that remains is the transfer of the documents from the agent forced by the Government to accomplish the seizure to the Government itself. Indeed, it is ironic that although the majority deems the bank customers’ Fourth Amendment claims premature, it also intimates that once the bank has made copies of a customer’s checks, the customer no longer has standing to invoke his Fourth Amendment rights when a demand is made on the bank by the Government for the records. See ante, at 53. By accepting the Government’s bifurcated approach to the recordkeeping requirement and the acquisition of the records, the majority engages in a hollow charade whereby Fourth Amendment claims are to be labeled premature until such time as they can be deemed too late.
Nor can I accept the majority’s analysis of the First Amendment associational claims raised by the American *98Civil Liberties’Union on behalf of its members who seek to preserve the anonymity of their financial support of the organization. The- First Amendment gives organizations such as the ACLU the. right to maintain in confidence the names of those who belong or contribute tg-; the organization, absent a compelling governmental interest requiring- disclosure. See NAACP v. Alabama, 357 U. S. 449 (1958). See also Lamont v. Postmaster General, 381 U. S. 301 (1965); Gibson v. Florida Legislative Investigation Comm’n, 372 U. S. 539 (1963); Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293 (1961); Shelton v. Tucker, 364 U. S. 479 (1960); Bates v. Little Rock, 361 U. S. 516 (1960); United States v. Rumley, 345 U. S. 41 (1953). It is certainly inconsistent with this lcng line of cases for the Government, absent any showing of need whatsoever, to require the bank with which the ACLU maintains an account to make and keep a microfilm record of all checks received by the ACLU and deposited fo its account. The net result of this requirement, obviously, is an easily accessible list of all of the ACLU’s -contributors. And, given the widespread informal access to.bank records by Government agencies, see supra, at 96-97, the existence of such a list surely will chill the exercise of First Amendment rights of association on the part of those who wish to have their contributions remain anonymous. The technique .of examining bank accounts to investigate political organizations is, unfortunately, not rare. See, e. g., Pollard v. Roberts, 283 F. Supp. 248 (ED Ark.), aff’d per curiam, 393 U. S. 14 (1968); United States Servicemen’s Fund v. Eastland, 159 U. S. App. D. C. 352. 488 F. 2d 1252 (1973). .
First Amendment freedoms are “delicate and vulnerable.” They need breathing space to survive. NAACP v. Button, 371 U. S. 415, 433 (1963). The threat of disclosure entailed in the existence of an easily accessible *99list of contributors may deter the exercise of First Amendment rights as potently as disclosure itself. ' Cf. ibid. See also United States Servicemen’s Fund v. Eastland, supra, at 365-368, 488 F. 2d, at 1265-1268. More importantly, however slight may be the- inhibition of First Amendment rights caused by the bank’s maintenance of • the list of contributors, the crucial factor is that the Government has shown no need, compelling or otherwise, for the maintenance of such records. Surely the fact that some may use negotiable instruments for illegal purposes cannot justify the Government’s running roughshod over the First Amendment rights of the hundreds of .lawful yet controversial organizations like ¿he ACLU. Congress may well have- been correct in concluding that law enforcement would be facilitated by the dragnet requirements of this Act. Those who wrote our Constitution, however, recognized more important values. ‘
I respectfully dissent.