A federal appeals court ruled Wednesday that law enforcement can legally scan or swipe a seized credit card—in fact, it is not a Fourth Amendment search at all, so it doesn’t require a warrant.
In the 8th Circuit Court of Appeals’ 15-page opinion, swiping a card does not constitute a physical search, as the magnetic stripe simply contains the same information obviously visible on the front of the card. Plus, the defendant, Eric-Arnaud Benjamin Briere De L'Isle, couldn’t have had a reasonable privacy interest in the card, the court concluded, because he would have tried to use it when he tried to buy something, thereby giving up privacy interests to a third party (the issuing bank).
According to court records in United States v. De L’Isle, the case began in June 2014 when Eric-Arnaud Benjamin Briere De L'Isle was driving westbound on I-80 and was pulled over by a Seward County, Nebraska, sheriff’s deputy.
The deputy, Sgt. Michael Vance, pulled over De L’Isle (also known as “Briere”) for following too close to a tractor-trailer. As Sgt. Vance approached the car, he noticed the distinct “odor of burnt marijuana” coming from within the car, and he observed three air fresheners hanging from the rear-view mirror. After questioning De L’Isle, Sgt. Vance suspected that the driver might have drugs, so he deployed his drug-sniffing dog.
While no drugs were located, the law enforcement agent found and seized:
…51 credit, gift, and debit cards in a duffel bag located in the vehicle’s trunk. Ten of the cards were American Express credit cards, all bearing Briere’s name, with different account numbers embossed on the fronts of the cards. A number of the debit and gift cards also had account numbers embossed on them, but none bore Briere’s name. Some of the cards were in wrapping utilized by the issuing company to display the cards in retail stores.
Later, upon further investigation by the Secret Service and the Department of Homeland Security, “The agents discovered the magnetic strips on the back of the 10 American Express credit cards in Briere’s name contained no account holder identification or account information which exists on legitimate American Express cards when they are issued.”
(Score: 2) by Tork on Wednesday June 15 2016, @09:20PM
🏳️🌈 Proud Ally 🏳️🌈
(Score: 3, Insightful) by tangomargarine on Wednesday June 15 2016, @09:37PM
Actually no, it sounds like they didn't bust him on credit card fraud: they arrested him for having a device that he could use to make things with which he could perpetrate fraud.
De L'Isle was indicted and eventually convicted of one count of possession of counterfeit devices.
Two degrees of criminality bacon
"Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
(Score: 3, Touché) by Dunbal on Thursday June 16 2016, @12:12AM
a device that he could use to make things with which he could perpetrate fraud.
What, like a pen?
(Score: 0) by Anonymous Coward on Thursday June 16 2016, @07:59AM
The swat team is on its way!
(Score: 3, Interesting) by Anonymous Coward on Wednesday June 15 2016, @09:39PM
You can argue about whether the search was reasonable or not. However, if we accept it was reasonable (and your comment did not dispute that) then it is perfectly reasonable that anything suspicious will be investigated (would you want that a cop on traffic duty not to intervene in an armed robbery)? And if they find a bag with 51 credit and gift cards... among them 10 amex cards with the same name... I would certainly find that suspicious, and so did they. So they busted him for CC fraud. And yes, I'm fussy about anybody accessing my phone, too. But I will not be fussy if they find 20 phones on someone and they will want to get access to them. It is (or should be) always the question of whether there is *reasonable* suspicion. This particular case is nowhere near even gray.
(Score: 2) by Tork on Wednesday June 15 2016, @09:51PM
However, if we accept it was reasonable (and your comment did not dispute that)...
You're right. My thoughts got a little ahead of me. What triggered my remark was the bit in the summary that said that by using the CC he was giving up his expectation of privacy to the bank. Now admittedly I did not read the article and I am going off knee-jerk here, but I don't understand how his credit card credentials are suddenly fair game in a circumstance like that just because he used his card. He does not, by virtue of using his card, blast his purchases to the world for all to hear about. What is a warrant even needed for if they can do that?
I'd also like to say that you are correct that I did not take into consideration just how they wandered across his stuff. I partly attribute that to frustration over this need the police departments think they have to scan my phone if I'm pulled over. I feel very strongly that they need to tighten up reasonable search and seizure to keep it context sensitive. If you smell drugs, look for drugs. If you find evidence on my phone that I illegally parked in a handicapped space, tough nuts.
🏳️🌈 Proud Ally 🏳️🌈
(Score: 2) by jcross on Wednesday June 15 2016, @11:01PM
I fail to see how scanning the mag stripe would tell them anything about his purchase history. In fact even the bank doesn't know *what* you bought, just who you bought it from and how much you spent. It's a number giving access to your bank account and that's about it, no different from looking at the routing number on one of your checks. As long as the police aren't using it to make unauthorized charges, it doesn't seem like much of a privacy violation to me.
(Score: 0) by Anonymous Coward on Thursday June 16 2016, @12:53AM
The fact that they're even messing with the cards at all when they were there for an entirely different purpose is a privacy issue. These fishing expeditions need to end.
(Score: 3, Insightful) by kurenai.tsubasa on Wednesday June 15 2016, @09:54PM
Quite. So let's go back over how the cards were discovered.
First, the car needs to get pulled over. Following a truck too closely? Maybe. Since when have cops ever pulled anybody over for tailgating?
Second, the smell of marijuana. This allows the cop to deploy a drug dog. Note that when it comes to smells, it's rather hard to prove after the fact what smelled which way.
Third, the drug dog alerted. This allows the cop to conduct a full search. Note that when it comes to smells, it's rather hard to prove after the fact what smelled which way.
Finally, no narcotics found. Instead, conveniently, evidence of possible credit card fraud found.
Now, I did say that it's rather hard to prove after the fact what smelled which way, but this is smelling to me like parallel construction.
(Score: 3, Interesting) by fnj on Thursday June 16 2016, @10:26AM
It's a moving violation and a reckless act. I would goddam well HOPE they would pinch him.
I agree this is a gratuitous overstep. The way to fix this is to GODDAM LEGALIZE IT.
(Score: 2) by deimtee on Thursday June 16 2016, @01:00PM
You do realize that as soon as marijuana is legalised these cops are going to start smelling cocaine or heroin when they pull over someone they want to search.
If you cough while drinking cheap red wine it really cleans out your sinuses.
(Score: 0) by Anonymous Coward on Wednesday June 15 2016, @10:00PM
I'm fussy about anybody accessing my phone, too. But I will not be fussy if they find 20 phones on someone and they will want to get access to them. It is (or should be) always the question of whether there is *reasonable* suspicion. This particular case is nowhere near even gray.
First they came for the phone collectors, but I didn't care because I only owned one phone. Then I bought another phone, and another, and another. I didn't realize I had become a phone collector until I was accused of terrorism for possessing one too many devices that could reasonably be used to detonate a bomb. They show no mercy to phone collectors. I had crossed that line and there was nowhere left for me except prison. All because they found me with a bag full of phones.
(Score: 5, Insightful) by Anal Pumpernickel on Wednesday June 15 2016, @10:22PM
But I will not be fussy if they find 20 phones on someone and they will want to get access to them
It's not even remotely illegal to possess 20 phones or a bunch of credit cards. It's none of their business, and I'm tired of this "reasonable" nonsense being used to increase the government's power. There's nothing reasonable about government thugs harassing someone merely because there's a possibility that they could be doing something bad.
(Score: 0) by Anonymous Coward on Wednesday June 15 2016, @10:56PM
A person who possesses 20 phones is a clear outlier, statistically speaking. You should be pleased to see cops using math to gauge probable cause.
(Score: 3, Interesting) by Dunbal on Thursday June 16 2016, @12:16AM
So what makes an outlier then? 10 phones? 15 phones? 5 phones? Which number, exactly, is the "allowed" or "normal" quantity of phones?
(Score: 2) by fido_dogstoyevsky on Thursday June 16 2016, @03:13AM
So what makes an outlier then? 10 phones? 15 phones? 5 phones? Which number, exactly, is the "allowed" or "normal" quantity of phones?
Don't know. Depends on the mean and standard deviation of the number of phones per subscriber? I'm sure several TLAs know those statistics.
"Outlier" is just someone with significantly more or less phones than average. Whether being an outlier is suspicious depends on paranoa.
It's NOT a conspiracy... it's a plot.
(Score: 0) by Anonymous Coward on Thursday June 16 2016, @09:00AM
Why is owning "too many phones" reasonable cause for a full search and a criminal investigation?
Is owning too many socks reasonable cause? What about pens? Or pieces of paper? Or Snickers bars? Or...
Do you see where this is going? Or are you too dense and drowning in LEO brand Kool-aid?
(Score: 2) by fido_dogstoyevsky on Thursday June 16 2016, @11:29AM
Why is owning "too many phones" reasonable cause for a full search and a criminal investigation?
Did you miss this bit?
Whether being an outlier is suspicious depends on paranoia.
It's NOT a conspiracy... it's a plot.
(Score: 0) by Anonymous Coward on Thursday June 16 2016, @11:06AM
You are an outlier simply by virtue of posting here. I hope you are ready, doggy.
(Score: 2) by fido_dogstoyevsky on Thursday June 16 2016, @11:32AM
You are an outlier simply by virtue of posting here. I hope you are ready, doggy.
And by not having a facebook account... oh shit!
It's NOT a conspiracy... it's a plot.
(Score: 0) by Anonymous Coward on Thursday June 16 2016, @01:38PM
If you are walking around with 5 phones on you my curiosity would be piqued.
(Score: 2) by Anal Pumpernickel on Thursday June 16 2016, @12:51AM
The government shouldn't be able to harass outliers, either. The mere possibility that someone could commit a crime with something should never be reason to search someone.
(Score: 2) by jdavidb on Thursday June 16 2016, @02:31AM
ⓋⒶ☮✝🕊 Secession is the right of all sentient beings
(Score: 0) by Anonymous Coward on Thursday June 16 2016, @02:36PM
The more they search me for something 'bad', the likelier I become to actually do something actually bad.
(Score: 3, Interesting) by tangomargarine on Wednesday June 15 2016, @09:31PM
Later, upon further investigation by the Secret Service and the Department of Homeland Security, “The agents discovered the magnetic strips on the back of the 10 American Express credit cards in Briere’s name contained no account holder identification or account information which exists on legitimate American Express cards when they are issued.”
So their argument that "this information is publicly available on the front of the card" is bullshit in this case because the stripe didn't match the front of the card.
because he would have tried to use it when he tried to buy something, thereby giving up privacy interests to a third party (the issuing bank).
Giving up privacy interests to one specific third party, i.e. the bank, i.e. NOT YOU. Pretty much the equivalent of saying the implicit consent you give in having sex with your spouse means that you're consenting to be pounded in the ass by every random person who decides to wander through your front door for the rest of your life.
"Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
(Score: 5, Insightful) by Francis on Wednesday June 15 2016, @10:05PM
The courts have been ruling for years that anything involving a 3rd party doesn't give you a reasonable expectation of privacy.
It's completely ridiculous, when you're doing business with a bank or a doctor, you expect it to be kept confidential. There's rules about that as well, but somehow the government can look all they like because expecting privacy is unrealistic.
It's gotten way out of hand as there's a relatively small amount of things you can do where you're truly just doing it yourself. But, if you're the only one there, then there's not really much point in having the 4th amendment as the authorities wouldn't know there was anything to arrest you for in the first place.
(Score: 2) by GungnirSniper on Wednesday June 15 2016, @10:24PM
By this standard, a written and addressed outbound letter in your own home could be collected without a warrant because it was going to likely sent elsewhere.
I don't see a problem with seizing the cards and equipment, but why couldn't they have gotten a warrant before reading the magnetic strips?
Tips for better submissions to help our site grow. [soylentnews.org]
(Score: 3, Interesting) by jcross on Wednesday June 15 2016, @11:15PM
What's magical about magnetism here? It seems like other than that the information can't be decoded with the naked eye, it's not actually that hidden. So just as a thought experiment, if the cops found loose sheet music, could they read it without a warrant? If they found audio tapes, could they play them? What about a vinyl record not in a sleeve, can they take high-res photos of the surface and use those to reconstruct the audio? Can they sprinkle tiny iron filings on the mag stripe and look at how they land? Note: I'm not sure if that last one would actually work. It's actually an interesting question about levels of obfuscation and hiding information. In the case of a letter, the object needs to be physically modified (by breaking the seal) to read it, so it's clearly private, but by design this is not true of a credit card.
I actually seem to recall another story about this kind of issue way back when. I'll try and dig it up if I can.
(Score: 2) by jcross on Wednesday June 15 2016, @11:23PM
Yep, found it:
https://soylentnews.org/article.pl?sid=15/09/30/1515226 [soylentnews.org]
And some discussion of that:
https://soylentnews.org/comments.pl?sid=9815&threshold=0&commentsort=0&mode=improvedthreaded&cid=243574#commentwrap [soylentnews.org]
(Score: 2) by Dunbal on Thursday June 16 2016, @12:18AM
why couldn't they have gotten a warrant before reading the magnetic strips?
Because they would have been told "NO". So just like a kid who knows that dad will tell him he can't go to his friend's house, the kid goes and asks mom first because he knows mom is the softie.
(Score: 1) by Francis on Thursday June 16 2016, @02:37AM
The only difference there is that letters, like phone calls, have a long history of precedents saying that they can't do it.
I wholeheartedly agree with you that there's not really any substantive difference between the two and that's why they shouldn't be allowed to rummage around in those things without a warrant either.
(Score: 0) by Anonymous Coward on Thursday June 16 2016, @04:41AM
Keep Your credit cards inside a sealed envelope.
(Score: 0) by Anonymous Coward on Thursday June 16 2016, @12:37AM
So, in other words, by doing a business transaction, in some sense, there is no material loss for any customers if that company then loses control of any customer PII it may have in its possession, because there's no implicit degree of privacy. If someone is then busted for having said PII, could they then just say in their defense, "we were planning on giving it to the US government", so therefore the data isn't really privacy rules-bound anyways...
Next step, then, is for any PII-gathering business, whether it's their main business raison d'etre (e.g., Google) or not, to slip in terms of service lines restricting anyone's claim for privacy invasion to have to first or only go through a binding arbitration processes.
some courts have already ruled that unless it can be demonstrated that the person or class suing has suffered a material loss from these kinds of data losses, they don't have standing to pursue any legal claims in the first place...
Now, what happens when an insurance company uses the same thing to try and argue out of a HIPPA violation fine, or maybe that's different because HIPPA...
(Score: 3, Insightful) by maxwell demon on Thursday June 16 2016, @06:19AM
Actually the analogy that came to my mind was: If you hire someone to clean your home, then you grant that person access to your home. According to the logic of the court, that would mean the police can now search your home without warrant, as you already voluntarily gave up privacy interests to your home to a third party (the cleaning company).
Wait, a third party doesn't need to be a company, right? So if you ever invited a friend to your home, you voluntarily gave up privacy interests to a third party (that friend), thus according to that logic a warrantless search is OK.
The Tao of math: The numbers you can count are not the real numbers.
(Score: 2) by tfried on Thursday June 16 2016, @04:00PM
So their argument that "this information is publicly available on the front of the card" is bullshit in this case because the stripe didn't match the front of the card.
They would have matched, if these had been legitimate cards. So, as far as I understand, the only information they could hope to gain from scanning was to see, if there were any obvious signs of forgery. Not too much different from shining a UV light at a banknote. If, next, they had proceeded to look at transaction data without getting a warrant, first, that would be a different story, indeed.
(Score: 4, Touché) by Anonymous Coward on Wednesday June 15 2016, @09:41PM
.. couldn’t have had a reasonable privacy interest in the card, the court concluded, because he would have tried to use it when he tried to buy something, thereby giving up privacy interests to a third party (the issuing bank).
The issuing bank isn't a third party in the transaction when using a credit card, its a three party transaction. Otherwise, he could sue the bank for intercepting his private transaction under the Computer Fraud and Abuse Act.
And having recently had this argument (about why I will continue to pay with cash for the privacy of my financial data, against the perceived value of loyalty schemes) with some Gen-Y clerk who's best argument came down to "well, I've got nuthin to hide ..", then I'm keen to play devil's advocate. If ordinary everyday consensual use of something gives up your right to privacy because you're engaging with another party, then how do you claim privacy of nude photos, in either the revenge porn [soylentnews.org] case or even the just got them on file [soylentnews.org] case?
I love how people standing around in clothes in broad daylight tell me they have "nuthin to hide".
(Score: 0) by Anonymous Coward on Wednesday June 15 2016, @10:01PM
I've used loyalty cards before but only when cash is tight and I'm getting a discount.
Of course... cash just keeps getting tighter and tighter for most of us.
(Score: 0) by Anonymous Coward on Wednesday June 15 2016, @10:07PM
Of course... cash just keeps getting tighter and tighter for most of us.
Won't you poor people kindly die so we the idle rich don't have to look at you or hear about you or be offended by your existence. Thanks for leaving your money behind when you go. Can't take it with you. Your money will go right back in the bank where it belongs, instead of in your dirty unwashed pocket.
(Score: 2) by Dunbal on Thursday June 16 2016, @12:21AM
Spoken like a true nouveau riche. If you were really part of the upper crust you'd know damned well to take care of the poor people because they do all the work you can't or don't want to do. They are also the ones who will cut your throat when they are starving.
(Score: 3, Interesting) by hemocyanin on Thursday June 16 2016, @12:15AM
If something is a really good deal, I'll use one of those Single Use loyalty cards. You know, sign up with fake data -- obviously fake (lastname: Marlboro; firstname: Snickers; etc. etc.), pay cash, leave the card at the counter. It's always amusing when they ask "don't you want your card" to see the puzzled look on their face when I say "no".
If enough people did this, the expense in printing and wages would be exceed the value of the tracking.
(Score: 2) by deimtee on Thursday June 16 2016, @01:13PM
I have come across cashiers who ask "do you have a flybys card?" You say no, they see you are going to pay with cash, they then say "would you mind if I swipe mine?".
I almost always say "sure go, ahead". It doesn't cost me anything, the poor underpaid bugger at the counter gets a few points towards his/her christmas presents, and the integrity of the whole tracking system takes another hit. Win-Win-Win.
If you cough while drinking cheap red wine it really cleans out your sinuses.
(Score: 0) by Anonymous Coward on Thursday June 16 2016, @01:44PM
Most of those cards work just fine without any actual name/address, just make sure you only use them with cash.
(Score: 0) by Anonymous Coward on Wednesday June 15 2016, @10:44PM
I love how people standing around in clothes in broad daylight tell me they have "nuthin to hide".
That's a nice way of putting it. I'll add this to my arguments when someone acts surprised that I value my privacy.
(Score: 0) by Anonymous Coward on Wednesday June 15 2016, @11:05PM
Here's why your argument will fail. Exhibitionists have nothing to hide. They work out regularly, shave all their body hair (especially down there), and they look smoking hot naked. You wear clothes because you're fat and you're ugly and you should shut up.
(Score: 2) by Dunbal on Thursday June 16 2016, @12:23AM
These people usually close the door when they use the bathroom too. Why, if they have nothing to hide? They should put a web cam in there and live stream it.
(Score: 0) by Anonymous Coward on Thursday June 16 2016, @03:45PM
Cause the gov forces me to hide, then wants to know why I'm hiding...
(Score: 3, Informative) by Scruffy Beard 2 on Wednesday June 15 2016, @09:56PM
Civil Asset Forfeiture Goes Digital [soylentnews.org]
My understanding is that the magnetic strip does contain extra information not present on the front of the card. That is how they distinguish between swiped and "card not present" transactions.
(Score: 5, Insightful) by jdavidb on Wednesday June 15 2016, @10:52PM
couldn’t have had a reasonable privacy interest in the card, the court concluded, because he would have tried to use it when he tried to buy something, thereby giving up privacy interests to a third party
That sounds like a non sequitur to me. If I am gay and want to keep it secret and tell a third party, say, my sister, how does that mean I have given up my right to privacy and the government now has a right to know?
ⓋⒶ☮✝🕊 Secession is the right of all sentient beings
(Score: 2) by schad on Thursday June 16 2016, @03:13AM
That's not the same situation, though. When you pay for something with a card, it's not just you and the seller. It's you, the payment processor, and the seller. So even if there would ordinarily be some privacy rights around a transaction directly between you and the seller, in this case the involvement of a third party -- the payment processor -- means you're implicitly giving it up.
You're not telling your sister, in other words. You're calling up a specialized Coming Out service and having them tell your sister.
(Score: 3, Insightful) by jdavidb on Thursday June 16 2016, @05:30AM
ⓋⒶ☮✝🕊 Secession is the right of all sentient beings
(Score: 2) by DeathMonkey on Thursday June 16 2016, @05:47PM
...keep it secret and tell a third party, say, my sister, how does that mean I have given up my right to privacy and the government now has a right to know?
If they ask her politely and she simply volunteers the information then it's not a search.
(Score: 2) by jdavidb on Thursday June 16 2016, @06:00PM
ⓋⒶ☮✝🕊 Secession is the right of all sentient beings
(Score: 2) by jmorris on Wednesday June 15 2016, @11:00PM
Seriously, what was the purpose of the article being discussed? Police make a routine stop, cop's 'spidey sense' goes off and he does what we train cops to do and he makes a bust. Somebody explain the problem here? Somebody have the balls to step up to the mic and formalize the subtext and come out and say that cop should have looked in that bag, saw a stack of obviously fake credit cards and said, "Well I was looking for dope so I can't use this. Carry on. Have a nice day!"
Then I am going to point at you and laugh.
(Score: 0) by Anonymous Coward on Wednesday June 15 2016, @11:11PM
The subtext is bitcoin and this guy was doing oldschool fraud with physical cards like an idiot.
(Score: 2, Insightful) by kurenai.tsubasa on Thursday June 16 2016, @12:08AM
Very well.
As I said up there. Problem #1: dubious reason for the stop. Problem #2: dubious reason for the drug dog.
I'll concede that the chain of evidence works as the law is currently right up until the issue in question, provided that the cop had a very lucky day and was 100% honest. However, the data on the magnetic stripes was not representative of what was stamped on the credit cards. Therefore, I would argue that it was not in plain view, as this opinion seems to assert. However, the suspicious nature of the find would have constituted probable cause for a warrant for further search of the magstripe data after a five minute phone call to the on call judge.
Why didn't they make that five minute phone call in accordance with the fucking law?
(Score: 5, Informative) by quintessence on Thursday June 16 2016, @12:23AM
The subtext is that a cop can't do a search without a warrant without probable case. Except if this case it is the proceeds from the search that is giving him them probable case. Cart before the horse. And then there's the whole reasonable expectation of privacy that somehow becomes "concerning" when you are videotaping a cop in public. Yeah.
AND THEN there the whole information divulged to a third party not requiring a warrant, as if the judge is unaware of HIPAA ($50,000 per violation). Apparently your medical records do and don't require a warrant under this line of thought.
"Well I was looking for dope so I can't use this. Carry on. Have a nice day!"
Actually, even with a warrant, that doesn't give cops cart blanch to go on a fishing expedition, and any evidence derived of another crime beyond what is specified on the original will get thrown out with a reasonably competent defense lawyer.
The sensibility is that police can't get involved with your personal business without justification, and that justification must be re-evaluated at every escalation. Otherwise it is just harassment.
(Score: 2) by jmorris on Thursday June 16 2016, @01:24AM
So you admit, you would rather the cop see a clear and present danger to the public, obvious credit card fraud and identity theft occurring, and just wave the criminal on. You do know you guys are doomed, right? We were once a wealthy and secure enough country we could afford to allow rabbits (Ask Google about r/K selection) like you to exist, but as things go bad you and your ideas are so doomed.
(Score: 4, Insightful) by quintessence on Thursday June 16 2016, @02:03AM
Gee, as if the only options the cop has is to let him go or arrest him on the spot.
I guess detaining the individual and then asking for a warrant is too much of a burden.
"...that justification must be re-evaluated at every escalation."
Keep rereading it until the point sticks.
You do know you guys are doomed, right?
No actually the only thing that has been doomed is due process. This isn't an episode of 24. The police have more than enough tools available at their disposal, and for the most part time is on their side. They just need to follow the law like the rest of us.
It's not too much to ask.
(Score: 2) by Phoenix666 on Thursday June 16 2016, @02:07PM
I suppose that means that I, as a citizen who employs those Law Enforcement Officers (LEOs), do not need any kind of warrant or anything else to invade the financial history or privacy of the LEOs, either.
Splendid! Let's get right on that, and violate the now non-existent rights of those who think themselves our masters.
Washington DC delenda est.