Recently, we have seen an uptick in the number of cases involving technology, particularly with respect to whether or not a search warrant is required in order for the police to gather evidence from an electronic storage device. Frankly, I was quite surprised by a recent opinion in United States of America v. DEL’Isle, which held that a search warrant was not required to read the magnetic tape on the back of a credit, debit or gift card.
At first blush, due in large part to my lack of knowledge about how the technology worked, it seemed to me that a search warrant would be required; Nevertheless, in the DEL’Isle case, the nature of the technology drove the opinion in the opposite direction. The law reacts to change, while technology drives change.To my surprise, the technology of a credit,debit or gift card is incredibly simple making the opinion of the Eighth Circuit very reasonable and understandable. Okay, let’s look at the facts in the DEL’Isle case to see how the Eighth Circuit reacted to the driving force of technology.
The driver of a vehicle (DEL’Isle) was stopped for following too close to another vehicle. The driver was given a warning for following too close; thereafter, the police officer employed his canine, which alerted to the presence of a controlled substance inside the vehicle. A search of the vehicle did not disclose any drugs; However, the police found a large stack of credit, debit and gift cards that were located in a duffel bag in the trunk of the car. The police then seized and accessed the information on the magnetic tapes without obtaining a search warrant.
The police used a magnetic tape reader to read the magnetic strips on the back of the cards. The cards either contained no account information on the magnetic strips or stolen card information with the driver’s name. As a result, the driver was charged with possession of 15 or more counterfeit and unauthorized access devices in violation of federal law. The driver filed a motion to suppress the evidence based upon a violation of his fourth amendment right to be free from unreasonable searches, which motion was denied by the district court. This decision was then appealed to the Eighth Circuit Court of Appeals.
No Physical Invasion
The Eighth Circuit concluded in United States of America v. DEL’Isle, that reading the magnetic strip on the back of the card “…was not a physical intrusion into a protected area prohibited by the Fourth Amendment.” The magnetic strip is a type of “external electronic storage device” that “…is designed simply to record the same information that is embossed on the front of the card.” ( I have a hard time getting my brain around the concept of an external storage device). The Eighth Circuit noted that using a credit card reader “is analogous to using an ultraviolet light to detect whether a treasury bill is authentic.”
No Reasonable Expectation of Privacy
In addition, the Eighth Circuit held that there was no “reasonable expectation of privacy that society recognizes as reasonable” because the information on the magnetic tape is simply a way to transfer information electronically (stored on the magnetic tape), which is identical the information embossed on the front of the card to the seller. After all, in order to make a purchase, the user of the card must disclose the information on the card; therefore, it is difficult to imagine how society would consider there was a “reasonable expectation of privacy.” The no “reasonable expectation of privacy” naturally follows the very limited nature of the purpose of the magnetic tape on credit cards.
Credit card fraud is rampant, in large part due to the fact that the credit card companies have opted for the cheaper solution, passing onto their customers the cost of the fraud. Even with the new chipped cards, which are more secure (but hardly a solution) the fraud will continue until more secure systems are adopted by either the credit card companies or required by the government. Companies that adopt highly secure systems may benefit by additional customers who demand security.
Local government officials may want to consult with the county prosecutor to determine if and how the prosecutor would handle cases based upon evidence gathered by the use of a credit card reader.
Howard Wright© 2016
You may find that the following Posts on my blog dealing with cases involving technology are of interest.