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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: 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.