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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: 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