8th Circuit: Scanning Credit Cards Is Not a Search

By Jonathan R. Tung, Esq. on June 24, 2016 | Last updated on March 21, 2019

After a recent ruling by the Eighth Circuit, police can access the information on the back of your credit/debit/gift card without having to obtain a search warrant first. Why? Because it's not a search under the Fourth Amendment, the circuit ruled. If this doesn't scare you, perhaps it should, because it has the potential to undermine the digital privacy law as recently laid out by Riley v. California.

Here, there seems to be a colorable argument to be made that the Eighth Circuit's opinion cuts against a reasonable application of Riley as it might apply to credit cards. Should cell phone law apply to magnetic strips?

Eric-Arnaud Benjamin Briere De L'Isle and His 51 Cards

The facts of the case involve Eric-Arnaud Benjamin Briere De L'Isle ("Briere") being pulled over by Nebras ka highway patrol after speeding and tailgating another vehicle on I-80. Upon approaching the car, the police officer detected the "odor of burnt marijuana." The police deployed a drug sniffing K9 which also alerted police to possible narcotics. Briere protested officers searching his trunk but was subdued.

No drugs were found, but 51 assorted debit, credit and gift cards were found. Some had Briere's name on them, others did not. These were seized and given over to Homeland Security, which scanned the cards' magnetic strips and determined that no legitimate account information existed for a handful of the American Express cards found in Briere's trunk.

Briere appealed the scanning of the magnetic strips but the denial of his attempts to have the evidence tossed was affirmed by the Eighth Circuit. The language the court used is key:

"However, here, where all of the information in the magnetic strip should have been identical to the information in plain view on the front of the card, and where the cards were lawfully possessed by law enforcement officers and established to be counterfeit, we cannot conclude that De L'Isle had a privacy interest warranting further investigation into potential Fourth Amendment protections."

The fact that the court used the term "should have been identical" is instrumental for two reasons. First, it was used because the court believed it to be material to the case. Second, if it believed it was instrumental, it erred.

On Probable Cause

It cannot be debated that the police officers' actions were justified in pulling over Briere for tailgating. Probable cause was triggered through the "plain view/sniff" rule when police smelled what they reasonably thought to be marijuana which was confirmed later, albeit erroneously, by the K9. But one really has to wonder if law enforcement was within its power to take the cards and have them swiped for info. Here's why.

Refresher of Riley

Most laypersons are not aware of Riley v. California, but they ought to be. Riley is the famous SCOTUS case that established conclusively that police cannot access the data on someone's cell phone during a search unless they also possess a search warrant to do so. Police may search the physical aspects of the phone such as the battery and buttons, but they may not look at the data within.

It could be argued that credit cards ought to be treated like mobile devices under Riley. The physical aspects of these cards may be examined, but the data inside must be accessed only through a valid search warrant.

What the Eighth Circuit relied on here was a skewed interpretation of reasonable expectation of privacy doctrine, the idea being that one does not have privacy rights in those objects and places which he holds out to the public. The argument goes that if Briere's information was identical to that information on the front of the card, then no violation of the Fourth Amendment took place because Briere shows everyone his credit cards.

What's more trouble is that it wasn't identical. Some of the cards that Briere possessed had no information printed on the front of the cards so they couldn't have matched the information that was scanned from the magnetic strips. This is a strange mix of "reasonable expectation" doctrine and "probable cause" that cannot be reconciled properly.

Gone Too Far

In fact, it probably would have been more fruitful for the Eighth Circuit to have relied on the "third party doctrine," most recently employed by the Fourth Circuit in USA v. Graham. There, the Fourth Circuit ruled that search warrants aren't needed when a government agency asks cell-phone carriers for user tracking information. The reason sounds ridiculous to some: because we all voluntarily give up our CSLI info to the phone company every time we use our devices. This is an extension of the reasonable expectation of privacy invasion -- one that has gone too far.

The Eighth Circuit may have accessed the credit card information properly, but it certainly muddied up the waters using the magic word "should." What the Eighth Circuit has implied is this: you do not have a reasonable expectation of privacy to your credit card data because it ought to confirm printed information that isn't public anyway. Does something about that ruling seem off?

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