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What the U.S. Treasury Gets Wrong About Shady Real Estate Deals

Jan 16, 2016

The U.S. Treasury this week announced it would begin identifying and tracking secret buyers of high-end properties through a new set of government regulations that will require ‘all-cash’ buyers in Miami and New York City to be disclosed.

While the measures are part of a broader federal effort to raise the focus on money laundering in real estate, it’s worth wondering if the new rules are constitutional. The government seems to be on a fishing expedition in an effort to first see if any of the transactions above $3 million in Manhattan and above $1 million in Miami were consummated with illegally laundered money. If so, they will then prosecute the individuals and companies involved in the scheme, but what about the transactions that were not? Isn’t there a basic right of privacy?

Even though the U.S. Constitution doesn’t include a specific amendment stating that, it has been determined by the U.S. Supreme Court’s interpretation of the Constitution that a right to privacy does exist.

I can see an argument being made for a violation of the Fourth Amendment search and seizure provision. Let’s say that you decide to purchase a slice of Manhattan real estate. Life has been good and you would rather own your home free and clear rather than take on any institutional financing. You are very private and like to keep your business to yourself, so you make use of legitimate business entities to protect you from liability as well as your privacy. Should the government be able to snoop through your life looking to see if you did something illegal so they could then prosecute you? I don’t think so!

Aren’t they actually saying that we believe that there is a reasonable suspicion that all cash buyers are presumed to be guilty of money laundering until they prove their innocence? I thought under our Constitution, we were presumed innocent unless proven otherwise beyond a reasonable doubt.

While there is no privilege given to a title company and their client, there is an attorney-client privilege. Title Companies will need to look into whether or not they actually need to comply with these new regulations before they go into effect at the beginning of March 2016. I have no doubt that attorneys will be looking into this issue as well.

While the government says that the disclosure requirement will last for up to six months, it has all the earmarks of a program that is here to stay and just another form of privacy rights being dwindled down in thin slices. The attitude is if we find something then we will advance the program.

True, the Treasury’s disclosure requirements are long overdue with the advent of so many people doing deals in this fashion. I like the idea of the government going after money launderers and criminals, but not in this fashion. Creative criminals will find ways to get around these regulations.

Seth Kaplowitz is a lecturer at San Diego State University’s College of Business Administration.

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