In the past few months, I’ve been posting about new cases mostly at my Twitter feed rather than here at the blog. Still, I thought I would flag the Eighth Circuit’s decision last week on whether reading the magnetic stripe on the back of a credit card is a Fourth Amendment “search.” As regular readers may recall, I blogged about this issue at length last year when the Sixth Circuit became the first circuit to decide the issue. The Sixth Circuit ruled that it is not a search. I argued that was wrong.

Last week, the Eighth Circuit addressed the question in United States v. DE L’Isle. From my perspective, there is good news and bad news. The bad news is that the Eighth Circuit agreed with the Sixth Circuit. The good news is that the decision was divided, with Judge Jane Kelly writing a dissent that is more on the right track. (Note that the majority opinion incorrectly refers to the “magnetic strip.”)

From the majority opinion by Judge Beam:

Although DE L’Isle claims he had an actual, subjective privacy interest in the cards, he is unable to make that case. As to the ten American Express credit cards, he could not have had an expectation of privacy simply because his name was embossed on the front of the cards. He also could not have had a subjective expectation of privacy in any of the other cards because the purpose of a credit, debit, or gift card is to enable the holder of the card to make purchases, and to accomplish this, the holder must transfer information from the card to the seller, which negates an expressed privacy interest. Medina, 2009 WL 3669636, at *11. Information is transferred to the seller “by manually inputting the information on the front of the card or swiping the card through a machine that reads the magnetic strip on the back.” Id. When the holder uses the card he “knowingly disclose[s] the information on the magnetic strip of his credit card to a third party and cannot claim a reasonable expectation of privacy in it.” Id.
Even if DE L’Isle had an actual, subjective expectation of privacy in the information found in the magnetic strips on the cards, this alleged privacy interest is not one society is prepared to endorse. In the normal course, all of the information found in the magnetic strips on American Express credit cards is identical to the information in plain view on the front of the cards. “Society is not prepared to recognize as legitimate an asserted privacy interest in information in plain view that any member of the public may see.” Alabi, 943 F. Supp. 2d at 1276. Even less convincing is the situation in this case where the magnetic strips on the American Express credit cards were empty. If society does not recognize a privacy interest in readily visible information, DE L’Isle certainly cannot assert a privacy interest in information that is nonexistent.

From Judge Kelly’s dissent, with paragraph breaks added:

In my view, the answer to [whether there is an expectation of privacy in the data] depends on whether there are significant technological barriers to an individual rewriting information on the magnetic stripe of their cards, and I would remand the case to the district court to develop evidence on this point. If the information on the magnetic stripe can be modified without much difficulty, the cardholder may indeed have a reasonable expectation of privacy in the contents of the stripe, based on the straightforward principle that law enforcement conducts a Fourth Amendment “search” when it reads the contents of rewritable digital storage media. See United States v. James, 353 F.3d 606, 613 (8th Cir. 2003) (holding that accessing CDs given by defendant to a friend violated Fourth Amendment).
That principle is implicit in the fact that both this court and the Supreme Court have consistently required searches of storage devices like hard drives and CDs to be justified either by a warrant or an applicable exception to the warrant requirement. See, e.g., Riley v. California, 134 S. Ct. 2473, 2482 (2014) (search incident to lawful arrest); United States v. Makeeff, — F.3d —, 2016 WL 1720234, at *6 (8th Cir. Apr. 29, 2016) (per curiam) (probationary search); United States v. Beckmann, 786 F.3d 672, 677–78 (8th Cir. 2015) (consent); United States v. Cartier, 543 F.3d 442, 447–48 (8th Cir. 2008) (warrant).
The principle is also suggested by the Supreme Court’s judgment in Walter v. United States, 447 U.S. 649 (1980), that federal agents violated the Fourth Amendment by viewing reels of defendants’ 8-millimeter films without a warrant, despite the fact that the agents had come into possession of the films lawfully. If a magnetic stripe card is a digital storage device, albeit one whose storage capacity is limited, see United States v. Bah, 794 F.3d 617, 633 (6th Cir. 2015) (noting that according to defendant magnetic stripes could hold 79 alphanumeric characters and 147 numbers), reading the data on it is a Fourth Amendment search. Accessing the data on the stripe would simply be a special case of the general rule that reading a digital storage device constitutes a Fourth Amendment search.

For more on my views, see my post from last year.